RUTHFULLY YOURS

On June 17, 2015 the Subcommittee on National Security and the Subcommittee on Health Care, Benefits and Administrative Rules conducted a joint hearing concerning “A Review of the President’s Executive Actions on Immigration ^[2].”

Inspector General (IG) John Roth testified at this hearing along with Sarah R. Saldaña, the Director of ICE (Immigration and Customs Enforcement) and León Rodríguez, the Director of USCIS (United States Citizenship and Immigration Services). For those not familiar with the federal government, the Office of the Inspector General (OIG) is comparable to “Internal Affairs” where police departments are concerned.

Before we begin to consider the Inspector General’s testimony and what it tells us about the administration’s use of what is claimed to be “prosecutorial discretion,” I want to begin by calling attention to what I hope is obvious to everyone: The Congressional Subcommittee on National Security was one of the two subcommittees that called this hearing, thereby reenforcing the nexus between immigration and national security — a nexus that was identified by the 9/11 Commission.

Nevertheless, precious few members of Congress, or journalists for that matter, are willing to publicly address this nexus. Talk about the proverbial “elephant in the room.”

From the outset, Mr. Roth’s prepared testimony ^[3] made it clear he would not offer any opinions about the legality or lack thereof of the policies. His testimony did disclose his concerns about how the administration has decided to address the immigration crisis in the United States — by the use of executive orders to inhibit immigration enforcement personnel from doing their jobs. According to information contained in his testimony, over the past two fiscal years, ICE, CBP, and USCIS collectively received, on average, about $21 billion annually.

The obvious question is what we are getting for that huge expenditure of money?

The common theme that ran through his testimony was the lack of information being accumulated and/or reported pertaining to the administration’s use of prosecutorial discretion.

This is not the first time that the OIG focused on the lack of relevant data and accountability. This report referenced a series of previous reports including an OIG report issued on May 4, 2015, “DHS Missing Data Needed to Strengthen its Immigration Enforcement Efforts ^[4].”

So much for Mr. Obama’s post-election promise that his would be the most “transparent” administration.

Here is how Inspector General Roth’s testimony for this most recent hearing begins:

There are an estimated 11.5 million removable aliens in the United States— roughly equivalent to the population of Ohio—including people who may pose a risk to public safety or national security. According to ICE, DHS removed or returned a total of 577,295 aliens in FY 2014. Given the sheer number of removable aliens, and the finite resources available to remove them, DHS has decided it must focus on those who pose the greatest risk. To this end, DHS has instituted various policies over time that allow the use of prosecutorial discretion in making immigration enforcement decisions. However, the Department does not collect or use the full range of prosecutorial discretion data to help assess immigration policy, evaluate the effectiveness and results of enforcement actions, or to be able to assess the reasonableness of the exercise of that discretion on the part of DHS personnel.

My testimony today will focus on the results of our recent audit of DHS’ use of prosecutorial discretion data.

In May, we reported that DHS is not collecting and analyzing enough data and does not have a mechanism to monitor and receive feedback on the results of using prosecutorial discretion. We also reported on the inability of officers at U.S. Immigration and Customs Enforcement (ICE) to access aliens’ criminal records in their country of origin. During our audit, we reviewed data the Department and its components collected and reported as of September 30, 2014, prior to the policy changes announced by the Administration in November 2014. Our office has not assessed the legal basis of the Department’s executive immigration reforms, prior prosecutorial discretion policies, or prosecutorial decisions made on individual cases.

In addition to our recent audit, today I will discuss several other reviews in which we found that components did not have enough reliable data to make informed decisions.

Before we continue reviewing excerpts from Mr. Roth’s testimony, I want you to consider a couple of important points. Administration policies that limit the aliens that agents should even stop to interview creates a dangerous situation. Agents should never be restricted as to whom they may or may not interview in pursuit of their duties. This is a tactic of intimidation aimed at the agents. What does a terrorist or a criminal look like?

Ordering agents to avoid certain aliens based on appearance constitutes “reverse profiling.” Inhibiting law enforcement officers from performing their sworn duties creates anarchy and, indeed, on January 14, 2015 FrontPage Magazine published my article, “America on the Precipice of Immigration Anarchy ^[5].”

When I was a federal agent, we used a phrase to sum up the safest way to do our jobs, “Big cases, big problems; Little cases, little problems; No cases, no problems!”

When the administration makes it clear that if an agent makes a bad judgement call and stops the “wrong alien” there may be hell to pay. Alternatively, make no stops of any aliens, and you will likely have no problems. The safest course of action is to not make any stops. We have seen similar situations with local law enforcement in cities where the administration has intimidated law enforcement into not acting. Crimes, including murders, have increased in those communities. This is something that does not make the police happy, but they understandably feel besieged. The same mindset has been created for immigration law enforcement officers today.

It is worth noting that the IG use the terminology, “removable alien,” which describes an alien illegally present in the United States and therefore subject to removal or deportation.

Two other points need to be made. Simply ignoring aliens violating our borders and our immigration laws encourages many more aspiring illegal aliens to head for the United States. Considering the magnitude of the immigration crisis, America must deter illegal immigration. While DHS must prioritize aliens who are obviously engaged in criminal or terrorist activities, when illegal aliens, who have no obvious nexus to such nefarious activities are encountered, they should also be arrested and held for a removal (deportation) hearing. We need to understand the importance of what I have come to refer to as “Deterrence Through Enforcement.”

Additionally, in law enforcement, there is a concept known as “Randomness.” Many of the FBI’s “Ten Most Wanted” are not arrested by the FBI or even other federal law enforcement agencies, but by police doing routine police work — making motor vehicle stops for speeding, running stop signs and red lights, for example.

Now review the next excerpt from his testimony:

Because DHS and its components have finite resources to respond to all immigration violations or remove all persons illegally in the United States, DHS exercises prosecutorial discretion in enforcing the law.

“Prosecutorial discretion” is the authority of an agency or officer to decide whether to enforce immigration laws, and if so, to what extent. For example, ICE enforcement officers are exercising prosecutorial discretion when deciding whom to stop, question, arrest, and remove from the country.

Since DHS’ formation in 2003, ICE has Implemented various policies to focus its efforts on criminal and civil enforcement priorities. It has also issued policies for processing aliens with special circumstances, such as crime victims and witnesses, nursing mothers, and the elderly, as well as ensuring that enforcement actions are not focused on sensitive locations, such as schools and churches.

At the time of our audit, ICE’s removal actions were governed by a series of policy memoranda signed by ICE Director John Morton in March and June of 2011, and it focused enforcement resources on three priorities:

Priority 1: Aliens who pose a danger to national security or a risk to public safety.

Priority 2: Aliens who recently violated immigration controls at the border, at ports of entry, or through knowingly abusing visa programs.

Priority 3: Aliens who are fugitives or otherwise obstruct immigration controls.

This segment makes some extremely important observations (I have bolded the most important points):

Despite its reliance on prosecutorial discretion to prioritize enforcement resources, ICE often does not collect prosecutorial discretion data and does not always ensure its statistics are accurate and complete. For example, ICE records its use of prosecutorial discretion broadly, without distinguishing the various types of exceptions to removal, such as DACA-related exceptions. Additionally, prosecutorial discretion statistics may be inaccurate because enforcement officers may not document every encounter with aliens it considers to be a low enforcement priority; ICE officials told us that field office personnel do not always record their use of prosecutorial discretion because it is too time consuming. ICE officials also said that they may use prosecutorial discretion at various points in the removal process, which would result in multiple records for the same person. As a result, data to support decisions to use prosecutorial discretion on low priority aliens may not be available. DHS also does not collect other prosecutorial discretion-related data that might help immigration efforts. For example, DHS would benefit from capturing information regarding aliens who are granted prosecutorial discretion and later commit a crime or pose a threat to national security and public safety.

In addition to assisting in the overall policy-making process, capturing the right information would allow the Department to ensure the proper and evenhanded application of the policies that do exist. As it stands now, there is no mechanism by which to assess the reasonableness of an individual officer’s similarly situated aliens, or to compare the use of prosecutorial discretion by various field offices. This data, if collected, could also be used to evaluate the performance of individual officers or field offices.

Uneven or inconsistent policy enforcement can have a negative effect on DHS’ immigration enforcement mission. For example, in February 2013 we published an audit report examining ICE’s worksite enforcement strategy, and found that headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts. Homeland Security Investigations’ inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws.

Clearly the lack of information makes it impossible to evaluate the effectiveness and reasonableness of the administration’s immigration policies and its broad use of executive orders to prevent the effective enforcement of our immigration laws. This has a direct nexus to national security, public safety, our economy and our unemployment crisis which is preventing our economy from truly recovering.

This lack of information and accountability undermines integrity and can also create opportunities for corruption.

The administration claims that we need “Comprehensive Immigration Reform” to get millions of illegal aliens “out of the shadows.” It is clear that the administration has no intentions of getting anyone out of the shadows, but of simply encouraging ever more aliens to violate our borders and our laws, blurring the distinction between legal immigration and illegal immigration.

Meanwhile the administration itself is operating in the shadows where it obfuscates the truth.

I also want to make an observation I have written about frequently, where the administration’s claimed use of “prosecutorial discretion” is concerned. I first tackled this issue in my June 17, 2012 Op-Ed for Fox News Latino, “Obama Invokes Prosecutorial Discretion to Circumvent Constitution and Congress ^[6].” I wrote that article just two days after Mr. Obama made some truly astonishing claims in a speech he delivered from the White House Rose Garden.

For example, Obama claimed that “Congress had failed to act.” The action that he claimed Congress failed to take, was to approve the DREAM Act. He used this false claim as the justification for creating the program known as DACA (Deferred Action- Childhood Arrival).

In point of fact, in voting down that wrong-headed legislation, Congress did, in fact, act — in the best interests of America and Americans.

Congress is not the rubber stamp for the President. On a naval vessel the Captain of the ship gives commands that are immediately and precisely repeated by the ship’s second-in-command, the Executive Officer. That is not the way our government is supposed to work. Our Constitution makes it clear that we have three separate and discrete branches of our government to create a system of “checks and balances.”

The House and Senate chambers are not “echo chambers” for the President.

There are provisions for limited, discretionary use of deferred action in specific case-by-case circumstances where, for instance, a family visiting the United States for a temporary period finds a member of the family has fallen seriously ill or was seriously injured. Compassion dictates that such situations be treated with kindness. However, when I was an agent, agents might be assigned to physically interview family members and doctors to verify the facts in each individual case to make certain that fraud was not being committed and also to make it clear that claims will be investigated to deter fraud. The additional temporary period for which aliens would be authorized to remain in the United States ended once the health emergency ended.

Obama improperly used Deferred Action to provide hundreds of thousands of illegal aliens with authority to remain in the U.S. for years and with employment authorization.

Obama also deceptively said that the purpose for his unilateral action was to help children. He used several other such adjectives to create the false and misleading impression that only teenagers would benefit from his program. In point of fact, illegal aliens up to age 31 would be eligible to participate provided that they claimed to have entered the United States prior to their 16^th birthday.

However, there are no resources to interview these hundreds of thousands of illegal aliens or to conduct field investigations to verify the information contained in their applications. This creates an open invitation to massive fraud. The 9/11 Commission found that immigration fraud was a major factor in the ability of terrorists to not only enter the United States, but embed themselves in the United States. I addressed this and related issues in my December 19, 2014 article for Californians for Population Stabilization (CAPS), “Obama’s ‘Gift’ to International Terrorists: Immigration Executive Action ^[7].”

Incidentally, the administration’s attempt to create an even bigger program DAPA Program (Deferred Action for Parents of Americans and Lawful Permanent Residents), which would have provided millions of illegal aliens with employment authorization and temporary lawful status, was stopped in its tracks when a number of governors sued the federal government to halt this outrageous program.

My June 3, 2015 article for CAPS, “A Recap: Obama’s Unlawful Immigration Amnesty Has No Appeal ^[8],” focused on the court decision which succeeded in putting the brakes on the administration’s grandiose plans.

Finally, I came to refer to the administration’s claimed use of “prosecutorial discretion” to actually be an example of “prosecutorial deception.” Law enforcement agencies and even individual law enforcement officers are given a bit of discretion in enforcing the laws they took an oath to enforce. A police officer may in scanning traffic with a radar gun, find a vehicle is being driven faster than the speed limit but decides to take no action. This may, in fact, be entirely appropriate. If the vehicle is being driven safely and not at an unreasonable speed, taking visibility, road conditions, apparent condition of the vehicle into account, it would not be unreasonable for a police officer to ignore a car being driven faster than the speed limit provided it did not create a safety hazard.

The police officers who ignore these vehicles are employing a valid and reasonable form of prosecutorial discretion. They know that if they wait awhile they will find an aggressive driver or drivers who are going significantly over the speed limit. It makes sense to focus on those drivers whose conduct is dangerous, to maximize public safety by not wasting time addressing a minor infraction of law and therefore not being available to stop the serious offender.

The key word here is “ignore.” They ignore, that is to say, take no action against the minor offenders.

The administration has not been ignoring the minor violations of law, but actually expending large sums of money and resources to process such law violators to provide them with lawful status for which there is no legal justification. Additionally, given the findings of the 9/11 Commission, this creates a huge vulnerability to national security and encourages still more aspiring illegal aliens from around the world, including terrorists, to head for the United States, assured that they are likely to not be arrested if they can gain entry into the United States. The easiest way for terrorists to accomplish their goals is to enter the United States via the inspections process at an international airport — especially if they are citizens of one of the 38 countries who are on the list of “Visa Waiver Countries.”

There is a Yiddish expression that states that “when the fish goes bad, it smells from the head.” The failure of the administration to impose accountability on the immigration components of the DHS parallels the way that the administration itself aggressively opposes any efforts to make it accountable as well.

The administration has set the tone and that tone is way off key.