deferring departure

by Leon Wildes

The Department of Homeland Security has just begun a review of all deportation cases pending in the immigration courts and undertook to start a nationwide training program for enforcement agents and prosecuting attorneys. The stated goal was to speed up deportation of convicted criminals and to decline to remove those without criminal records. In essence, DHS has adapted a procedure to allow immigration judges to focus their attention on deporting aliens with serious criminal convictions and those who should be deported for national security reasons. The government plans to issue guidelines and train its officers in their administration, so that their heavily overburdened immigration judges may concentrate on serious cases, which should have their primary attention.

Although announced as a new program by the Director of Immigration and Customs Enforcement (ICE), Homeland Security’s enforcement branch, the program is intended to make the best use of the agency’s limited enforcement capacity. The young, the elderly, persons with close family here and those with minimal violation of the immigration laws, should not use up valuable personnel and facilities. The agency feels that it is empowering its enforcement personnel to concentrate on prioritizing the removal of serious violators of the immigration and criminal laws. Essentially, it constitutes an exercise in judicious use of prosecutorial discretion in handling the nation’s severe immigration problems. There is nothing new about the program.

Actually, it was discovered in a lawsuit filed by former Beatle, John Lennon, in fighting deportation proceedings instituted by the Nixon administration in 1972. Nixon was tipped off by Senator Strom Thurmond that Lennon, who was visiting the United States with his wife, artist Yoko Ono, was capable of influencing millions of prospective new young voters to “dump Nixon” and cast their votes to get the U.S. out of the Vietnam War. 1972 was the first year when 18 to 20 year olds were able to vote, thanks to the 26th Amendment and Richard Nixon wanted desperately to be re-elected.

Lennon and Ono had come to the United States to recover custody and locate Ono’s 8 year old child, Kyoko, whose father, Tony Cox, had absconded with her. The Lennons had obtained custody orders from two U.S. courts which had held Cox in contempt for failing to produce the child in court. With these equities on their side, the Lennons were nevertheless ordered to leave the United States, despite the serious hardship this would cause them. They fought the Nixon administration’s heartless attempts to remove them.

Lennon filed suit in federal court under the Freedom of Information Act, claiming there was a secret unpublished procedure by which district directors of INS could allow some deportable aliens to remain here, despite their deportability. After denying the existence of such a program for years, the government was finally ordered to reveal the existence of the program, then referred to as the “non-priority program”. All of the records of approved cases were turned over to Lennon, and thoroughly studied and published by his lawyer. The program, which existed in the “unpublished blue pages” of the government’s Operations Instructions, was published in 1975 and publicly made available to the public. This same program continues in existence since the 1970’s and is now referred to as the “Deferred Departure” program.

It is estimated that there are no fewer than 10 million to 15 million illegals in the United States. Homeland Security’s limited number of immigration judges are capable of handling a maximum of about 3,000 deportation cases a year. Unless prosecutorial discretion is used in this way to focus their efforts on the more serious cases, there is little hope for ultimate success in dealing with. illegals. Comprehensive immigration legislation might be the answer. However, while the immigration law has been in need for revision for over 18 years, Congress has taken no action throughout that period to fix our broken immigration system. And the absence of federal legislation to comprehensively review our current immigration law has encouraged a number of states to offer their own remedies. These remedies represent an effort by particularly vulnerable states to do something about the problem, but they have also been challenged by the federal government. In the absence of any legislative solution, it seems that the Department of Homeland Security’s deferred action program is the best show in town. At least it allows the government to use its limited facilities to their best advantage.

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About The Author

*Leon Wildes, Senior Partner of Wildes & Weinberg, was counsel to John and Yoko Lennon in their deportation proceedings. Lennon succeeded in securing deferred departure status and thereafter successfully obtained status as a lawful permanent resident of the United States. Wildes hopes to publish a book describing the landmark Lennon case.

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