"Obama Invokes Prosecutorial Discretion to Circumvent Constitution and Congress"

Hi Gang:

By now it is unlikely that you have not already heard about the speech given by President Obama this past Friday, June 15th when he announced that his administration would no longer seek to arrest or deport illegal aliens who, in essence, would have benefited by the DREAM Act.  In fact, he stated that his administration would provide these illegal aliens with employment authorization even though nothing had happened to change their illegal status other than the decision of the administration to cynically invoke “Prosecutorial discretion” to justify this newest assault on our nation’s immigration laws that, at their foundation, are intended to protect American lives and American jobs.

On the morning of June 15th I received a number of phone calls and e-mails from a variety of people including journalists and the former Inspector General of USCIS (United States Citizenship and Immigration Services) the agency that adjudicates applications for a wide variety of immigration benefits including the conferring of lawful immigrant status and even United States citizenship upon aliens in the United States.  One of the e-mails I received early on Friday morning was from Fox News Latino inviting me to provide an Op–Ed concerning my “take” on the impending speech that the President was to make later that day.

Needless to say I welcomed this opportunity to provide my perspectives about this matter.  My commentary was posted today, Sunday, June 17, 2012 on the Fox News Latino website and a complete copy is posted below.

Before you read my commentary you should know that prosecutorial discretion is a tactic that is used in law enforcement for certain purposes, but never to encourage lawlessness, especially where the laws we are discussing go to the heart of nearly every challenge and threat that our nation faces today.  A reasonable example of prosecutorial discretion is the police officer who does not stop motorists who are exceeding the speed limit by a few miles per our but is otherwise driving safely.  

For the administration to not focus major efforts on not seeking to arrest and deport aliens who have no criminal histories would be reasonable provided that illegal aliens who are discovered to be present in the country would be placed under deportation proceedings to discourage illegal immigration would be a sensible approach to immigration law enforcement and, in fact, I had made precisely that recommendation to Senator Alphonse D’Amato when he was the Senior U.S. Senator from the State of New York and I worked with him and his staff to enact the Aggravated Felony Statute for criminal aliens back in the early 1980’s.  

Law enforcement needs to employ the concept of triage to make the most of limited resources.  By not prioritizing noncriminal aliens but nevertheless arresting those who may be encountered during the course of routine investigations, still provides a deterrence against those aliens who would violate our borders and our laws.  It also adds a measure of “randomness” into the equation so that terrorists and criminals as well as more “mundane” illegal aliens never know when their luck might run out and they will find themselves facing deportation from the United States.

Back then any alien who was deported and unlawfully reentered the United States would face no more than 2 years in prison.  As a consequence, it was extremely rare to convince the U.S. Attorney to prosecute those aliens for the crime of un- lawful reentry.  They would also invoke “Prosecutorial discretion” and not prosecute such illegal aliens because they realized that it was likely that even if convicted these aliens would be sentenced to “time served.”  Consequently unless these aliens had been repeatedly deported and/or had criminal convictions for felonies the federal prosecutors would decline prosecution.  They expected that the INS (Immigration and Naturalization Service) the predecessor of ICE (Immigration and Customs Enforcement) would seek the deportation of such illegal aliens and, indeed, we did.

Although I was an INS special agent back then, I took it upon myself to reach out to Senator D’Amato and  his staff to enact a change in law that would differentiate criminal aliens from noncriminal aliens.  Ultimately, in part by convincing some 30 of my colleagues at the New York District Office to speak with the Senator and his staff over a six month period, the law was amended making unlawful reentry by an alien  who had been convicted of felonies a separate and distinct crime with a maximum penalty of 20 years in federal custody.  Because of this increase in penalty for reentry by criminal aliens, federal prosecutors across the country began prosecuting such criminal aliens in large numbers.   In addition to our efforts, it must be noted that the then chief of investigations for the INS in New York, a gentleman by the name of Walter Connery who held the title, Assistant District Director for Investigations had shortly after our meetings with the senator, written a legislative initiative that paralleled our efforts to convince Senator D’Amato of the need to change the law.  Walter is also an attorney and although he did not know what we had been to see the senator and we had no knowledge of his efforts until several months later when I discussed the new law with him and he told me about the interesting coincidence.   

Now the administration is not only not seeking to arrest and deport these illegal aliens but provide them with employment authorization and, hence, providing them with temporary lawful status in the United States!  This goes way, way beyond simply focusing limited resources on the area where it could have the most impact!  

There are many falsehoods contained in the President’s speech and my commentary delves into the more serious of those deceptive statements.

The newest assault on the enforcement of our nation’s immigration laws is one of a series of previous decisions that make a mockery of laws that are so fundamental to the safety and well being of our citizens.  The administration filed lawsuits against the states of Arizona and Alabama for enacting immigration laws that essentially paralleled the immigration laws that the administration not only is willing to enforce but has shown utter contempt for.  What you may not realize is that while many politicians have called for making E-Verify mandatory to prevent illegal aliens from getting jobs in the United States, every illegal alien who is provided with employment authorization will easily pass the E-Verify program and will have as much right to work in the United States as United States Citizens and lawful immigrants who may have waited for years in order to fulfill the legal requirements to be lawfully admitted into the United States!

In my judgement, the current policy encourages illegal aliens to enter our country in violation of law and makes a mockery of the lawful system that permits more than 1.1 million immigrants to enter our country each and every year.  (This is far more than any other country on the planet accepts!)

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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Fox News Latino - Fair & Balanced
Obama Invokes Prosecutorial Discretion to Circumvent Constitution and Congress


Published June 17, 2012

| Fox News Latino

First and foremost our immigration laws were enacted for two
fundamental and essential purposes: to protect American lives and to
protect American jobs. Our immigration laws are completely and utterly
blind as to race, religion or ethnicity and only differentiate citizens
of the United States from those who are not citizens.

Legally, the succinct term that our immigration laws to describe
foreign nationals who are present in our country is alien—a term that
those who oppose the enforcement of our immigration laws eschew, not
because the term is the pejorative that they falsely claim, but because
that term provides clarity to the debate.

Many of the statements made by the president and by Secretary of
Homeland Security Napolitano are fraught with false or misleading
assertions. First of all, the President referred to the aliens who would
benefit from his use of prosecutorial discretion “Dreamers,” an obvious
reference to the DREAM Act—legislation that, according to the
President, was not passed due to inaction by politicians.

In point of fact, Congress did act—it acted decisively to vote down
both the DREAM Act and Comprehensive Immigration Reform, legislation
that was, in the view of those elected representatives who voted against
those bills, not in the best interests of our nation or our citizens.  

Under our Constitution the Congress represents the will of the
people. It would certainly appear that the administration is acting to
circumvent the immigration laws that Congress would not amend or alter.  

Second, it is disingenuous to claim that the purpose for his actions
was to assist young immigrants.  Under the measures that the
administration is taking, aliens who had not attained their 30th
birthday would be eligible to participate in the process to be granted
employment authorization.

How could a person who is approaching his 30th birthday be considered
a young person or child?  Yet repeatedly the President invoked the
claim that his use of prosecutorial discretion was intended to assist
young people who are “talented, driven and patriotic.” He went so far as
to assert that these young people are, “for all intents and purposes,
Americans.”  How could anyone know how talented, driven and patriotic
millions of illegal aliens are whose true identities, backgrounds and
affiliations are unknown and unknowable?

Our immigration laws provide a lawful means for lawful immigrants to
acquire United States citizenship through the naturalization process
that is not simply a formality but is intended to make certain that our
nation does not simply hand out the keys to the kingdom that
naturalization provides.

In his speech the President says that we are a nation of laws and a
nation of immigrants. Yet by his actions, key reasons for our
immigration laws will be ignored by those employed by our government to
enforce and administer those laws.  

We are indeed a nation of immigrants and each and every year more
than 1.1 million aliens are admitted into the United States as lawful
immigrants who on the day that they are given their green cards are
placed on the pathway to United States citizenship. However, the
difference between an immigrant and an illegal alien is comparable to
the difference between a houseguest and burglar.  

Next, the administration is claiming that some 800,000 illegal aliens
would be eligible to participate in this program. There is no reliable
way of knowing how many illegal aliens would be eligible and it should
be remembered that when the Amnesty of 1986 was enacted, it was claimed
that about one million illegal aliens would participate in that program,
yet when the bureaucratic dust settled, more than 3.5 million aliens
were granted amnesty.

In the program now being cobbled together by the Obama
administration, aliens would have to claim to have entered the United
States prior to their 16th birthdays and to have remained in the United
States continuously for at least the last five years. But the point is
that a 29-year-old alien who ran our borders and in the process created
no record of his (her entry) would be able to apply to participate in
this program.

In my experience as an INS special agent, I found that many illegal
aliens used multiple false identities. It has been estimated that the
vast majority of illegal aliens who are present in the United States are
under age 35. By making age 30 the cutoff point, it must be presumed
that the potential is for millions of aliens to claim to meet the
requirements to participate in the program being created by the Obama

United States Citizenship and Immigration Services, or USCIS, would
be required to process these applications. It has been reported that at
present USCIS processes more than 6 million applications for various
immigration benefits each year including aliens who apply to acquire
lawful immigrant status and United States citizenship.

The beleaguered adjudications officers of that agency are constantly
being pressured to keep up with the backlog of applications. The easiest
way to reduce the backlog is to approve applications. An approval only
takes a few minutes, denying an application could take hours. The
program mandated by the administration could potentially dump millions
of more applications onto the desks of those overworked adjudications
officers who would only be able to spend a few minutes to review and
process each application.

It is likely that most applications would not entail an in-person
interview, but would be done purely by having an adjudications officer
review the application and supporting documents—creating a potential for
fraud and identity theft.  An alien who provided a copy of a transcript
to a school would have no way of proving that he (she) is actually the
person named in that transcript and actually attended that school or was
actually present in the United States for the requisite period of time
or entered the United States prior to his 16th birthday.

Concerns about the potential for fraud in this program are not
without good reason. There have been a long succession of GAO and OIG
reports that reflected a high level of fraud within the immigration
benefits program and, in fact, the 9/11 Commission noted that of 94
terrorists who were identified as having operated in the United States
in the decade leading up to the terrorist attacks of September 11, 2001,
approximately 2/3 of those terrorists (59) used visa fraud or
immigration benefit fraud to enter the United States.

This raises the highly disturbing issue that this program carries
with it serious national security risks. This program would, of
necessity, require that illegal aliens be provided with official
identity documents that would enable them to create new identities for

Additionally, it is unfathomable how providing employment
authorization to hundreds of thousands if not millions of heretofore
illegal aliens is helpful to millions of American workers who are
unemployed or underemployed and seeking gainful employment so that they
can support themselves and their families.

This is especially impossible to understand given the fact that
record numbers of homes have been lost to foreclosure and record numbers
of Americans now live below the poverty line. Providing employment
authorization to these huge numbers of illegal aliens is the equivalent
of having lots more kids enter a room where the game of “Musical Chairs”
is being played, but without providing more chairs for the players.

Where joblessness is concerned, however, we are not talking about a
childhood game but the life and death challenges being confronted by
millions of American families of every race, religion and ethnicity.

We are often told that the President’s action will be favored by
Latino voters. It is remarkable that so many journalists claim to be
concerned about “racial profiling.” Yet these same journalists are quick
to talk about the mythical “Latino voters.” Anyone who believes that
any group of ethnic voters such as “Latino voters,” “Black voters” or
“Jewish voters” will vote the same way as others of the same ethnicity
or religion is, in my opinion, guilty of an insidious form of profiling.

It is inconceivable that any voter of any race or ethnicity would be
happy to know that illegal aliens who violated our borders and our laws
would be rewarded for their violations of law with employment
authorization, that would give them equal standing in seeking employment
with American workers and with lawful immigrants who abided by our laws
and waited on line in order to be able to become lawful immigrants.

When the President stood before the cameras and microphones in the
White House rose garden on June 15, 2012 and announced this program, in a
manner of speaking, he fired the starter’s pistol for aspiring illegal
aliens from around the world and, for them, our borders are the finish

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