Martinez’s entry into the United States was illegal. But his deportation was unjust. From all accounts, he was a hard-working husband and father involved in the community. Forcibly separating him from his wife and children was against the moral ethos of this country and a departure from current Immigration and Customs Enforcement (ICE) policy known as “prosecutorial discretion.”
Martinez was the victim of a broken immigration system, one that does not allow a reasonable path to citizenship but at the same time seeks immigrants to fill the labor gaps in the service, farming and other industries. The result has been hundreds of thousands of people living in the shadows, fearful of deportation, despite positive contributions to their communities and churches. “Even if you marry a U.S. citizen, it could take up to 10 years outside this country before attaining legal status,” said Stacy Taeuber, a Madison immigration attorney who represented Martinez.
Prosecutorial discretion, defined as the authority to exercise discretion in deciding when to prosecute or enforce a civil or criminal law, is a practice available to all levels of law enforcement. On the federal level, the president has authority to issue guidance and directives, including executive orders, to interpret these laws.
Last summer, the Obama administration, at the request of Congressional members, directed ICE to exercise prosecutorial discretion in deportation cases. Janet Napolitano, secretary of the Department of Homeland Security, then announced that all DHS divisions would aim their resources at removing the most dangerous undocumented persons instead of non-violent immigration violators. With about 300,000 cases before immigration courts, the decision was made to speed up deportations of convicted criminals and those who pose national security risks.
According to the American Immigration Council, ICE uses a number of factors to decide when to exercise prosecutorial discretion.
Among the factors are: the person’s pursuit of education in the U.S.; circumstances of the person’s arrival in the U.S.; the person’s length of presence in the U.S.; whether the person or any immediate relative has served in the armed forces; the person’s ties and contributions to the community; whether the person has a U.S. citizen or permanent resident spouse, child, or parent; and whether the person is likely to be granted some sort of temporary or permanent relief from removal.
Under these guidelines, Martinez’s deportation and separation from his family should not have occurred. He had been employed as a cook at a restaurant in Manitowoc for eight years, was a volunteer at the YMCA and has a wife and four children who are U.S. citizens.
Until federal immigration laws are reformed, further deportations of undocumented people who have no criminal records and who contribute to their communities should cease. While it is too late for Jaime Martinez (Jennifer reports that she and her four children will move to Mexico City to be reunited with him next month), immigration agents should now follow the rules their superiors have implemented. Prosecutorial discretion will eliminate the break-up of families caught in the middle of a broken immigration system.