Meissner’s Gift to Criminal Aliens

There was great controversy in this country over the last-minute pardons President Clinton handed out to select criminals. But almost no attention has been given to the much broader relief that Clinton's Immigration and Naturalization Service (INS) Commissioner Doris Meissner made possible for an entire class of criminal aliens targeted for removal from the United States by a 1996 immigration reform law. On Nov. 17, 2000, she sent a memorandum to the agency's regional and district directors, titled, "Exercising Prosecutorial Discretion." The memo provides "guidelines" encouraging INS field officers to forgo enforcing elements of the 1996 law against some criminal aliens who, if the law were enforced as written, faced mandatory detention and almost certain removal from the country. On April 28, 2000, the INS issued a statement signaling that Meissner's memo would be coming as the agency's response to the 1996 immigration reforms that had passed by massive majorities in both houses of Congress. "INS supports legislation that would remove some of the harsh consequences that have resulted from enforcement of changes made to the Immigration and Nationality Act," said the statement. "In the interim, INS currently is preparing field guidance to address the use of prosecutorial discretion when enforcing the INA and determining when to place an individual in removal proceedings." A Nov. 28, 2000, INS "Fact Sheet" explaining Meissner's guidelines was virtually an attack on the act of Congress itself. "Prosecutorial discretion," said the sheet, "is not a full or adequate substitute for the forms of relief previously available from an immigration judge prior to the changes in the law in 1996. In many cases, the exercise of prosecutorial discretion by INS leaves a person in limbo, at risk of future immigration enforcement action and unable to travel outside the United States without the fear of being denied readmission." "Ultimately," said the sheet, "INS believes that a complete solution requires legislation to restore, to certain aliens affected by the 1996 changes, the possibility of a grant of relief by immigration judges during the removal process." So, who were the aliens that Meissner wanted INS field officers to save from legally mandated detention and deportation? They were convicted felons. The 1996 immigration reforms included provisions to ensure the detention and deportation of certain criminal aliens who had previously slipped through the cracks of INS enforcement. First, the law expanded the list of crimes considered "aggravated felonies" while keeping in place a mandate that the INS must detain any alien who had committed an "aggravated felony" whenever it began immigration proceedings against that person. Secondly, the law sharply limited the discretion of immigration judges in not ordering the deportation of these criminal aliens when they arrived in immigration court. The 1996 law, as Sen. Jon Kyl (R.-Ariz.) said when President Clinton signed it, "provides for mandatory detention of most deportable, criminal aliens and requires that those aliens be deported within 90 days." It also, Kyl said, eliminated "the attorney general's authority to waive deportation orders for individuals who have been convicted of an aggravated felony." But Meissner's memo to INS field officers pointed to a loophole through which the INS could slip criminal aliens past these new provisions. An INS proceeding against an alien begins when an INS officer issues the alien a Notice to Appear (NTA). Once an NTA is issued to an alien who has been convicted of an aggravated felony that alien must be detained. But if a field officer used "prosecutorial discretion" not to issue an NTA in the first place, the criminal alien, already convicted of an aggravated felony, could go free. "Even when an immigration officer has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case," wrote Meissner in her guidelines memo. "This is true even when an alien is removable based on his or her criminal history and when the alien—if served with an NTA—would be subject to mandatory detention." In addition, Meissner wanted INS field officers to act quickly in using their "prosecutorial discretion." "As a general matter," she wrote, "it is better to exercise favorable discretion as early in the process as possible, once the relevant facts have been determined, in order to conserve the service's resources and in recognition of the alien's interest in avoiding unnecessary legal proceedings." But what about when the relevant facts cannot be readily determined? Amazingly, Meissner seemed to suggest that INS officers should sometimes take it on themselves to act quickly not to enforce the law—even against criminal aliens and even when they don't have all the facts. "For example," wrote Meissner, "an officer called upon to make a charging decision may reasonably determine that he or she does not have a sufficient, credible factual record upon which to base a favorable exercise of prosecutorial discretion not to put the alien in proceedings, that the record cannot be developed in the timeframe in which the decision must be made, that a more informed prosecutorial decision likely could be made at a later time during the course of the proceedings, and that if the alien is not served with an NTA now, it will be difficult or impossible to do so later. "Such decisions must be made, however," wrote Meissner, "with due regard for the principles of these guidelines, and in light of other factors discussed here. For example, if there is no relief available to the alien in a removal proceeding and the alien is subjected to mandatory detention if placed in proceedings, that situation suggests that the exercise of prosecutorial discretion, if appropriate, would be more useful to the INS if done sooner rather than later. It would be improper for an officer to assume that someone else at some later time will always be able to make a more informed decision, and therefore never to consider exercising discretion." Indeed, Meissner wanted INS field officers to know that they were "expected" to sometimes use prosecutorial discretion even with criminal aliens. "In particular, in cases where it is clear that no statutory relief will be available at the immigration hearing and where detention will be mandatory, it best conserves the service's resources to make a decision early," she wrote. "Enforcement and benefits personnel at all levels should understand that prosecutorial discretion exists and that it is appropriate and expected that INS will exercise this authority in appropriate cases." How would the INS review and monitor this tremendous power it was putting in the hands of line officers—the power to exempt from the law a criminal alien whom Congress anticipated would face mandatory detention and likely deportation? "A DD's [District Director's] or CPA's [Chief Patrol Agent's] exercise of prosecutorial discretion will not normally be reviewed by Regional or Headquarters authority," wrote Meissner. What if an INS officer let a criminal alien go and that alien later hurt somebody through, say, an act of terrorism? Wouldn't that create a legal liability for the INS officer? "Some INS personnel have expressed concerns that, if they exercise prosecutorial discretion favorably, they may become subject to suit and personal liability for the possible consequences of that decision," wrote Meissner. "We cannot promise INS officers that they will never be sued. However, we can assure our employees that federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agency's legal authority—such as this memorandum—from personal legal liability for those actions." In other words, Meissner's memo itself would immunize INS officers from liability for any damage caused by criminal aliens they decided to let loose. Furthermore, Meissner said that as a matter of policy one INS district should consider the prosecutorial discretion decisions of another district as binding, even though the illegal alien continued to be an illegal alien. In effect, one INS official would have the power to grant a national amnesty to an illegal alien, even a criminal alien. "An issue of particular complexity is the future effect of prosecutorial discretion decisions in later encounters with the alien," she wrote. ". . . [I]mmigration violations are continuing offenses that, as a general principle of immigration law, continue to make an alien legally removable regardless of a decision not to pursue removal on a previous occasion. . . . An INS office, should abide by a favorable prosecutorial decision taken by another office as a matter of INS policy, absent new facts or changed circumstances." Meissner did not respond to a phone message asking for her commentary on her memo, nor did she respond to written questions sent to her by email. INS spokesman Bill Strassberger said Meissner's guidelines, which are still in force as INS policy, were intended to address the few hard cases created by the new law and were not intended to open the door to widespread use of prosecutorial discretion for criminal aliens. Even though the guidelines instruct INS field offices to memorialize decisions on prosecutorial discretion, he said he did not believe the INS had ever audited these decisions and did not know if the service knew exactly how many criminal aliens had benefited from the policy. "Our country cannot apply the law in a black or white fashion," he said. "This is compassionate conservatism."