ICE Must Disclose Plans for Undocumented Aliens

MANHATTAN (CN) - The 9th Circuit on Monday called on Immigration and Customs Enforcement officials to reveal any plans to prosecute five noncitizens without apparent criminal convictions.

In an identical dissenting opinion filed with each case, Judge Diarmuid O'Scannlain worried that the two-paragraph order would interfere with the government's policy of "prosecutorial discretion" in immigration cases.

ICE director John Morton released a six-page memo on June 17, urging prosecutors to weigh several factors in determining whether to target an undocumented immigrant for deportation.

The memo urged "particular care and consideration" for army veterans, minors, the elderly, pregnant women and victims of domestic violence, and focus on repeat felons and people believed to pose security threats.

That memo may affect possible future prosecution against Luis Alfredo Mata-Fasardo, a Guatemalan father of two with no criminal record. Deported in 1996, Mata-Fasardo fought multiple times for his case to be revisited.

U.S. Circuit Judges William Canby, Jr. and Raymond C. Fisher ordered ICE to tell the court where they stand on the case.

"In light of ICE Director John Morton's June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner's pending petition for rehearing," the order states.

The panel issued identical orders in the cases of David Aranda Rodriguez; Eliot Oswaldo Pocasangre; Anthony Michael Jex and Gilda Mae Middleton; and Dario Ico San Agustin and Lucila Calalang San Agustin. Rodriguez has two U.S. citizen daughters, one of who has asthma. Pocasangre has spent over five years in the United States since his entry at the age of 15. Jex and Middleton have a daughter who is a U.S. citizen. The San Agustins have two U.S. citizen children.

In a dissenting opinion with each case, Judge Diarmuid F. O'Scannlain chided the majority for what he called an "audacious ruling."

"We have only the slimmest authority even to review the exercise of prosecutorial discretion; we certainly lack authority to demand a pre-emptive peek into whether and when (and no doubt, before long, why) the executive branch will exercise such discretion," O'Scannlain wrote (parentheses in original).

"The majority thus needlessly catapults this court into a realm of decisionmaking from which it is constitutionally walled off," he added. "I cannot join that effort and rather would decide the petition for rehearing on the basis of the record already before us."

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