Hi Gang:
The administration has taken to the unprecedented tactic of providing huge numbers of illegal aliens with a de facto amnesty through the issue of policy directives to the employees of DHS that not only terminated deportation (removal) proceedings against illegal aliens but even providing hundreds of thousands of illegal aliens with employment authorization.
My commentary today is predicated upon a Washington Times article that reports on how the House Subcommittee on Immigration Policy and Enforcement, chaired by Lamar Smith, has subpoenaed the records relating to the aliens who have benefited by the administration’s policies concerning what it refers to as “Prosecutorial Discretion.”
The actions by the subcommittee are significant and consistent with the exercise of oversight as mandated in the Constitution. It is about accountability! In a manner of speaking, the subpoena served upon the administration for these records is the equivalent of Internal Affairs asking to see the log of a police officer to determine if he (she) carried out his duties faithfully and in accordance with accepted practices and policies. Here, of course, the administration is certainly entitled to establish policies but the issue of motivation and intentions are of extreme importance and relevance.
Where the subpoena of all of these records are concerned, however, I would caution Chairman Smith, be careful what you wish for!
Presuming that his subpoena is adhered to, his office and the offices of his staff are about to encounter a blizzard or documents relating to God knows how many hundreds of thousands of illegal aliens!
The use of “Prosecutorial Discretion” can be reasonable and appropriate when the goal is to prioritize the use of limited resources and provides for fair and effective law enforcement.
We have all seen such discretion in action when a police officer who is monitoring motor vehicle traffic does not stop motorists who may be exceeding the speed limit by a few miles per hour but are otherwise driving prudently and safely. In New York City, for example, the NYPD will generally ignore motorists who don’t exceed 60 mph on roads designated as having a 50 mph speed limit provided that the motorists are not driving aggressively. This makes sense. However, when too much leeway is given, or when laws are not enforced, drivers become lax in their driving and public safety becomes endangered.
However, there is a world of difference between a police officer who stops a speeding motorist and only issues a warning or a stern lecture about safety, because although the driver had exceeded the speed limit, he was not endangering public safety, and was otherwise driving prudently and a police officer who fails to issue a summons because of a bribe. As is the case where many aspects of law are concerned, motivation and intentions must be taken into account when determining whether wrong-doing is involved.
The problem with the administration’s broad use of prosecutorial discretion is two-fold. First is the issue of the motivation behind this decision where political benefits may result for the administration. If, through these policies the administration garners campaign contributions and the promise of votes in exchange for the non-enforcement of the immigration laws then I believe an important line has been crossed. If this is the motivation then prosecutorial discretion would not really be about creating a “triage” wherein the most serious offenders are prioritized to maximize the use of the far too limited resources that ICE and CBP has at its disposal.
I would argue that if the administration has concocted its policy of nonfeasance, where the immigration laws are concerned, under the guise of “prosecutorial discretion” to achieve a political objective, for example, seeking to curry favor with deep-pocketed campaign contributors or the promise of votes from members of advocacy organizations, it is walking a fine line and may actually be guilty of misfeasance and/or malfeasance!
To provide a bit of clarity, according to the Online Merriam-Webster Dictionary, here are the definitions of nonfeasance, misfeasance and malfeasance:
mis·fea·sance
noun mis-?f?-z?n(t)s
: trespass; specifically : the performance of a lawful action in an illegal or improper manner
mal·fea·sance
noun ?mal-?f?-z?n(t)s
: wrongdoing or misconduct especially by a public official
If the administration really wants to enforce the immigration laws but cannot do the sort of job it really would want to do, why then has Janet Napolitano, the Secretary of DHS which overseas CBP and ICE not asked for additional funding to hire more enforcement personnel for ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection)?
It is astonishing that TSA (Transportation Safety Administration) has more than 60.000 employees to screen airline passengers but only about 7,000 enforcement personnel at ICE and more than half of those 7,000 are engaged in enforcing customs laws and not the immigration laws!
Now we need to consider the second problem that may well result from the current use of prosecutorial discretion and this has to do with the simple fact concerning the significance of our nation’s immigration laws, especially in this perilous era which cannot be overstated.
Title 8, United States Code section 212 is that section of law that enumerates the various categories of aliens who, under the INA, are supposed to be prevented from entering the United States and are supposed to be removed if they are found here:
Here is a link to that section of law:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1956.html
Please take the time to review the contents of this section of the Immigration and Nationality Act (INA).
Among the categories of aliens who are supposed to be kept out of the United States are aliens with dangerous communicable diseases, aliens who suffer serious mental illness and are prone to violence, aliens who are convicted felons, aliens who fugitives from justice in other countries, aliens who are human traffickers and drug smugglers, aliens who are war criminals and aliens who have committed human rights violations. Also aliens who are engaged in terrorism and espionage are among those who are, by law, supposed to be prevented from entering our country and are supposed to be removed if they manage to evade the Border Patrol and enter the United States.
Illegal aliens who run our nation’s borders may simply be intent on seeking unlawful employment or may have more sinister goals in mind. The problem with aliens who evade the inspections process, as I have noted on many previous occasions, is that there is no record of their entry into our country and their is often no way of properly identifying these illegal aliens when they are encountered. While the open borders advocates have adopted the practice begun by the Carter administration of referring to illegal aliens as being “undocumented” to minimize the significance of their presence in our country and blur the distinction between aliens who are lawfully present or whose presence represents a violation of our nation’s borders and laws, the term “Undocumented” is one that we should take a moment to contemplate.
When an alien is described as being “undocumented” what is really being conceded is that the is foreign national in question is one whose true identity and even his (her) nationality is unknown and likely, unknowable. This means that there is no reliable way of determining this individual’s criminal history, especially in foreign countries. There is no way of truly knowing if this individual is desperate for a job or desperate to evade law enforcement authorities in another country or, perhaps, even in multiple countries, for committing heinous crimes. There is no way of reliably determining if that person his affiliated with criminal or terrorist organizations and there is certainly no reliable way of knowing why that person is in the United States.
An undocumented alien who is present in our country presents a threat to the wellbeing and the security of our nation and our citizens because of all of those unknowns I laid out above!
Even if the illegal alien is simply attempting to secure a job, you must consider how difficult it now is for Americans to secure a job in this extremely challenging economic climate!
In addition to providing you with the Washington Times article that prompted my commentary today, below, I have also provided you with a disturbing news report that appears in the Huffington Post about how many of our fellow citizens have exhausted their unemployment benefits and have no means of supporting themselves and their families.
The title of this disturbing news report is:
“Unemployment Benefits: Most Of The Unemployed No Longer Receive Benefits”
Here is a link to that news report:
While the administration keeps hawing its “Jobs Bills” it is doing nothing to staunch the flow of foreign workers who compete with American workers for those precious jobs!
In my judgement, based on my 30 years with the former INS, the appropriate way of truly utilizing “prosecutorial discretion” is to conduct investigations that focus on the identification of violators of the immigration laws that clearly pose a threat to the safety and wellbeing of our citizens and our nation but to also make certain that when illegal aliens are encountered in the United States that they be taken into custody and that their removal (deportation) should be sought. This would send a clear message to illegal aliens who are present in our country that they face the risk of discovery, arrest and deportation if they are in the proverbial “wrong place at the wrong time.”
This would also send a clear message to people in other countries who may be contemplating coming to the United States by running our borders or otherwise violating our laws that even if they manage to evade the Border Patrol and survive the trek across some truly dangerous terrain or game the visa process or the insane Visa Waiver Program, that they may well find that they may be discovered, arrested and deported.
This is what deterrence is all about.
The outrageously broad use of prosecutorial discretion which not only calls for DHS officials to not seek to arrest and deport illegal aliens but actually rewards illegal aliens with employment authorization would certainly appear to be a violation of our nation’s federal immigration laws- the same laws that the administration has shown utter contempt for!
By ordering that DHS personnel not arrest illegal aliens but, in fact, provide them with employment authorization not only creates still more competition for unemployed Americans and lawful immigrants but, in my judgement, creates a powerful incentive for still more illegal aliens to ignore our nation’s borders and violate our nation’s immigration laws. The Immigration and Nationality Act (INA) the all inclusive body of laws that govern the enforcement and administration of our nation’s immigration laws, deems it a felony to encourage, induce, aid or abet aliens to enter our country in violation of law or to remain illegally in the United States in violation of law.
Here is an excerpt from the relating statute:
Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens. Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).
Encouraging/Inducing — Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who — encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
Conspiracy/Aiding or Abetting — Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.
Here is the link to this section of law in its entirety.
By establishing such a policy of prosecutorial discretion, the administration, in my judgement, also exposes our nation and our citizens to a national security vulnerability. The fact that terrorists who would seek to enter the United States to embed themselves in our country in preparation to carrying our a terrorist attack have now been notified that if they can evade the Border Patrol that if they make their way to any city in the United States they like, all that they need to do is not be arrested and convicted of committing a felony and they will have nothing to fear from ICE!
Terrorists fully understand the need to keep a low profile and thus hide in plain sight or, in the parlance of the 9/11 Commission, embed themselves in our country. The current policy of prosecutorial discretion removes randomness from the equation where terrorists and transnational criminals are concerned!
It is time for the citizens of our nation to contact the politicians who are responsible for their failures to live up to their oaths of office and enforce our immigration laws.
The goal must be to make it clear to our nation’s leaders, on all levels, to come to terms with the fundamental fact that nation’s borders and our immigration laws exist to protect our nation and our citizens from aliens whose presence has the potential to have a serious adverse impact. Ignoring those laws exposes our nation and our citizens to a variety of serious threats and challenges ranging from national security and criminal justice and public safety to the economy, the environment, healthcare and education!
We are often told that our nation is a nation of immigrants- what must be remembered is that the difference between an immigrant and an illegal aliens is comparable to the difference between an houseguest and burglar!
A country without secure borders can no more stand than can a house without walls!
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our country is to survive and if our children and their children are to get their share of the “American Dream” the citizens of this nation must take their citizenship seriously!
We the People must be the best citizens we can be, citizens who are worthy of the gallantry demonstrated by our valiant men and women in the military, law enforcement and firefighters, who routinely go in harm’s way in defense of this nation and our citizens.
My goal in writing this and other commentaries is to point out our nations many failings before more victims pay the ultimate price for the incompetence and ineptitude of our government.
The first step in problem-solving is to first identify the problems and vulnerabilities and then devise strategies to overcome them.
If you find yourself to be in agreement with this commentary, I ask that you forward it to as many of your friends and family members as possible and encourage them to do the same. We need to create a “Bucket Brigade of Truth!”
The practice of good citizenship does not end in the voting booth, it only begins there.
For far too long our citizens demonstrated apathy which emboldened elected representatives to all but ignore the needs of the average American citizen in a quest for massive campaign funds and the promises of votes to be ostensibly delivered by special interest groups.
It is therefore understandable that the politicians of both parties, are greatly concerned about the demonstrations currently sweeping our nation just as did the creation of the Tea Party. Clearly more and more of our fellow Americans are demonstrating that they are not as dumb as the politicians from both parties had expected us to be!
I am encouraged that more and more of us, We the People, are not willing to simply sit on the sidelines anymore!
I believe our nation’s is greatly benefited by the rich diversity of our people which is why I could never imagine living anywhere except New York City, arguably the most diverse city in our nation if not, in fact, the world. However, my idea of diversity most certainly does not include members of MS-13, the Mexican drug cartels or members of other transnational gangs or members of al-Qaeda!
If our government’s failures to secure our nation’s borders and effectively enforce our immigration laws concerns you or especially if it angers you, I ask you to call your Senators and Congressional “Representative. This is not only your right- it is your obligation!
All I ask is that you make it clear to our politicians that we are not as dumb as they hope we are!
We live in a perilous world and in a perilous era. The survival of our nation and the lives of our citizens hang in the balance.
This is neither a Conservative issue, nor is it a Liberal issue- simply stated, this is most certainly an AMERICAN issue!
You are either part of the solution or you are a part of the problem!
Democracy is not a spectator sport!
Lead, follow or get out of the way!
-michael cutler-
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