A memo written by ICE Director John Morton and sent to all agents in charge, chief counsel, office directors and special agents, states ICE doesn't have enough resources to deal with illegal immigrants who happen to be students, and therefore, they should have less of a chance of deportation due to the criteria used when making decisions about who will be deported known as "prosecutorial discretion." According the the ICE memo:
One of ICE's central responsibilities is to enforce the nation's civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and . Immigration Services(USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency's enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity ofthe immigration system. These priorities are outlined in the ICE Civil Immigration Enforcement Priorities memorandum of March 2, 2011, which this memonmdum is intended to support.
Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise "prosecutorial discretion" ifit is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. ICE, like anyother law enforcement agency, has prosecutorial discretion and may exercise"it in the ordinary course of enforcement1.When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency in a given case.
Criteria Considered, note the bolded lines:
Factors to Consider When Exercising Prosecutorial Discretion
When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents,and attorneys should consider all relevant factors, including, but not limited to
•the agency's civil immigration enforcement priorities;
•the person's length of presence in the United States, with particular consideration given
to presence while in lawful status;
•the circumstances of the person's arrival in the United States and the manner of his or her
entry, particularly if the alien came to the United States as a young child;
•the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
•whether the person, or the person's immediate relative,has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
•the person's criminal history, including arrests, prior convictions, or outstanding arrest
•the person's immigration history, including any prior removal, outstanding order of
removal, prior denial o f status, or evidence o f fraud;
•whether the person poses a national security or public safety concern;
•the person's ties and contributions to the community, including family relationships;
•the person's ties to the home country and condition~in the country;
•the person's age, with particular consideration given to minors and the elderly;
•whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
•whether the person is the primary caretaker o f a person with a mental or physical
disability, minor, or seriously ill relative; ;
•whether the person or the person's spouse is pregnant or nursing;
•whether the person or the person's spouse suffers from severe mental or physical illness;
•whether the person's nationality renders removal unlikely;
•Whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
•whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; .and
•whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.
This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.
There you have it folks. The DREAM Act, rejected by Congress, would have given those in the country illegally, brought here by their parents who broke U.S. immigration law, U.S. citizenship so long as they go to college or join the military. Despite Congressional rejection and the rejection by the American people, the DREAM Act has been enacted by a process of ICE agents deciding who should and should not be deported on a case-by-case basis rather than equally under the law. As usual, Congress doesn't matter and the opinion of the American people doesn't matter to the Obama Administration. If you're here illegally, so long as you go to college or join the military, you're good to go.
Maybe a better question to ask would be: What criteria actually gets an illegal immigrant deported? Since there seems to be so many exceptions to the breaking the law by entering the U.S. without permission.
This also brings up the question of what exactly the priorities of ICE are if deportations are determined on a case-by-case basis? If the federal government would secure the border to keep more illegal immigrants from entering the country in the first place, ICE wouldn't have to "prioritize" deportations due to a lack of resources. Until the border is secure, the problem is just going to get worse.
Charles Krauthammer while talking with Fox News' Chris Wallace called the move lawless:
“This is outright lawlessness on the part of the administration,” argued syndicated columnist Charles Krauthammer on a discussion panel with Fox News’ anchor Chris Wallace. “Whatever the politics of this, we do have a Constitution. And under it, the Legislature, the Congress enacts the laws and the executive executes them. It doesn’t make them up.
“The DREAM Act was rejected by Congress,” Krauthammer continued. “It is now being enacted by the executive, despite the express will of the Congress. That is lawless. It may not be an explicit executive order; it’s an implicit one.”