What Do John Lennon and Immigration Law Have in Common?

Thumbnail image for Screen Shot 2014-08-07 at 2.55.12 PM.pngFor the past two years, the President and Congress have been working together (and often against each other) in the effort to formulate a solution to address the growing undocumented foreign national population in the United States. As part of a temporary solution, in June of 2012, the President implemented his Deferred Action for Childhood Arrivals program (commonly referred to as DACA) which provides young adult undocumented with a short-term delay of their deportation proceedings.

DACA is similar to a long-standing policy that the U.S. government maintains in order to delay or cancel deportation proceedings, called prosecutorial discretion. Prosecutorial discretion allows the Department of Homeland Security (DHS) attorney who is assigned to the foreign national's case to essentially "drop" the immigration violation charges that are pending against the foreign national and close the national's deportation proceedings.

Many conservative groups who are opposed to the President's immigration policies have been levying charges that the President does not have the legal authority to delay or close deportation proceedings and therefore he is acting outside of the law when he or the DHS attorneys do so. However, these groups would benefit from a history lesson involving President Nixon, immigration law, and music legend John Lennon.

In 1968, John Lennon had been convicted of possession of cannabis resin in England. While visiting New York, Mr. Lennon's previous criminal conviction was discovered by the Nixon administration who then initiated deportation proceedings against him. Mr. Lennon hired immigration attorney Leon Wildes to assist with his case.

During the course of his representation, Mr. Wildes filed a Freedom of Information Act request and discovered that the Immigration and Naturalization Service (the agency that would go on to become U.S. Citizenship and Immigration Services in the wake of 9/11) had exercised its own discretion to not deport more than 1,800 foreign nationals as part of a secret program directive for cases that were deemed "non-priority." After Mr. Wildes found out about the program, the INS was forced to concede that prosecutorial discretion indeed existed and provided official guidelines on how and when it could be applied to a given case.

This guidance, which requires DHS attorneys to look to both the sympathetic factors of a case (such as the existence of U.S. citizen relatives, gainful employment, etc.) and mitigating factors (such as the severity of the immigration violation and other criminal records) still form the basis by which DHS will entertain a request for prosecutorial discretion today.

Of course, even in the wake of the INS prosecutorial discretion revelations, there are still detractors who argue that prosecutorial discretion does not provide the President or the DHS with a blank check and should only be applied in the smallest amount of extraordinary cases.

It is important to remember that the exercise of prosecutorial discretion is never guaranteed in any case. If you or a loved one have been put into removal proceedings, you need to examine all of your options for preventing deportation. Contact our office to day 650-293-0270 to speak to an immigration attorney who can help you with your case today.

Additional Blog Posts

ACLU Sues U.S. Government Over Voluntary Departure, Silicon Valley Immigration Lawyer Blog, June 7, 2013
Let's Put USCIS Forms in the Post Office, Silicon Valley Immigration Lawyer Blog, March 1, 2012

Immigration Reform / by Michelle Gee