Benjamin Johnson, executive director of the more liberal American Immigration Council, countered that for some conservatives, "it's never enough." Over the last seven years, Johnson said, the U.S. has quintupled its number of border agents and quadrupled its immigration enforcement budget -- "but the appetite for increasing immigration enforcement-only policy seems to be never-ending. I can only conclude that it's because constantly raising the bar on how much we need to spend and what constitutes secure borders at this point seems like an excuse for not doing anything else."
This Practice Advisory provides basic information about filing an immigration-related mandamus action in federal district court. It discusses the required elements of a successful mandamus action as well as jurisdictional concerns that may arise.
The Immigration Policy Center, which is on the opposite end of the immigration debate from the federation, argues that their inclusion as a cost of illegal immigration is misleading.
"They are U.S. citizens and denying them education, health care, financial assistance, etc.. would put them at a disadvantage compared to other U.S. citizens," spokeswoman Michele Waslin wrote in an e-mail. "In financial terms, it could probably cost the state much more in the long run to have a population of poorly educated, unhealthy citizens."
This Practice Advisory explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. It also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by ICE and USCIS officers.
Americans are justifiably frustrated that 11 million unauthorized immigrants now live in the United States. Yet the majority of them would have preferred to come legally; there was simply no way under current immigration laws. Moreover, most of them are working, paying taxes, and buying US goods. Other than lacking legal status, most are law-abiding residents. Many are married to US citizens, with children who are citizens.
The problem is that they are often willing to accept low wages and poor working conditions, which creates unfair competition for US workers and gives unscrupulous employers an unfair advantage over law-abiding employers.
We could continue on the same path we have pursued for two decades: spending more money on enforcement and passing increasingly harsh laws in an attempt to drive unauthorized immigrants out. But despite the billions of dollars we’ve spent building walls, hiring border patrol agents, and detaining and deporting hundreds of thousands, the unauthorized population hasn’t decreased significantly.
Instead of “enforcement only,” we should offer unauthorized immigrants a chance to come forward, register, pay a fine, learn English, pass background checks, and legalize their status.
Legalizing them would inject a new level of certainty into their lives, allowing them to invest more in themselves and their communities. Legalized immigrants will earn more, pay more taxes, consume more, buy houses, start businesses, and contribute more to the economy.
Americans want real solutions to the problem of unauthorized immigration that are practical and fair. Enforcement alone has failed. We need comprehensive immigration reform that includes a legalization program.
– Michele Waslin, senior policy analyst, American Immigration Council’s Immigration Policy Center
Delayed decision-making by immigration agencies is a recurring problem faced by immigration attorneys and their clients. The federal mandamus statute provides a remedy for unreasonable delays by allowing a federal district court judge to order the agency to make a decision within a specific period of time. Too often, attorneys for the government attempt to dismiss mandamus cases, arguing that the court has no jurisdiction. We have filed amicus briefs in cases pending in the courts of appeals with the goal of establishing binding precedent confirming the district courts’ jurisdiction over mandamus suits against USCIS. We argue that USCIS has a non-discretionary duty to decide an application (although not necessarily to approve it) and that, in cases in which there is unreasonable delay, district courts have jurisdiction under the mandamus statute to order the agency to carry out this duty in a timely fashion.
“Those children can’t petition for their parents to become U.S. citizens until they are 21 years old and it most cases, the parents would be barred from getting a visa to the United States for 10 years,” said Michelle Waslin, senior policy analyst at the American Immigration Council’s Immigration Policy Center in Washington, D.C. “So that’s a 31-year plan. It doesn’t seem like it’s a very good plan to legalize your status here in the U.S. It doesn’t protect them from deportation.”
Waslin argues that such a change in the law will affect all citizens, creating a complicated bureaucracy.
“My birth certificate will no longer be proof of my U.S. citizenship, so how would anybody prove their citizenship?” she asked.
Pages 447 – 448: Talking points on right to counsel in ICE examinations prepared for then-Acting Principal Legal Advisor Barry O’Mellin in advance of the 2009 AILA Annual Conference; addresses access to counsel during 287.3 interrogation and the right to counsel during a worksite enforcement operation
Pages 736 – 747: Office of the Principal Legal Advisor power point: Interviewing Aliens of Interest in National Security Cases, 2009