The Obama administration has embraced a radical new approach to immigration law. It has, without the consent of Congress, transformed violation of immigration law into a “secondary offense.” That is to say, the goal is to ensure that an alien faces consequences for breaking immigration law only if he also breaks some other, “real,” law involving, say, violence or drug dealing. And even then, the primary violation has to be quite severe to warrant deportation for the (secondary) immigration offense.
This is comparable to the seat belt laws in many states; in places where failing to wear a seat belt is a secondary offense, a police officer cannot pull you over just for that, but if he pulls you over for speeding or some other primary offense, he can then also write a seat belt citation.
The administration’s November 2014 deportation priorities memo pretends this is not so; it includes ordinary violations of immigration law, but only as the lowest priority for deportation. And the collapse in interior removals of immigration violators shows that this third priority category is just for show.
John Sandweg, former acting director of ICE, stated the Obama administration position succinctly: “If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero.”
This extra-legal shift in the conception of the immigration statute has been misleadingly packaged as “prosecutorial discretion.” True prosecutorial discretion is exercised by individual law enforcement officers in ways that do not undermine the agency’s mission. For instance, if a state trooper stops you for speeding and your documents are in order, you’ve interacted with him in a respectful manner, and your toddler in the back seat is crying because she needs her diaper changed — and he lets you off with a warning rather than a fine, that is prosecutorial discretion.
What the Obama administration has done is use discretion as a pretext for simply exempting the vast majority of immigration violators from any possibility of legal consequences.
The results of this transformation of immigration law are clear in the data. ICE statistics show that deportations from the interior (aliens arrested by ICE deportation officers and special agents, as opposed to the Border Patrol) have collapsed, from 236,000 in President Obama’s first year in office to 72,000 last year, a decline of 70 percent over the course of this administration:
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