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Obama on Prosecutorial Discretion

ObamaonImmigrationby Slowik & Robinson, LLC

The Obama Administration has tread a careful line on immigration, trying to appease immigration rights activists and minorities–particularly Hispanics who overwhelmingly supported him in the last election, but whose support has since dwindled–without alienating voters who favor more conservative immigration measures. Activists want the administration to use its power to defer removals (ie, deportations, which usually occur through the immigration courts), particularly those of undocumented students, brought here as children by their parents, and to review and revise current policies, including pushing for passage of the Dream Act. Conservatives want tightened borders and prosecution of undocumented individuals who have fallen afoul of U.S. criminal law (being undocumented is a civil offense, just to clarify).

Note: the administration has the power to transform immigration court procedures because those courts are part of the Justice Department in the executive branch, not part of the federal judiciary.  Developments in the area of prosecutorial discretion illustrate how the President has managed to satisfy neither side in this matter.

Prosecutorial discretion really hit the headlines last June, appearing in a memo issued by Immigration and Customs Enforcement (ICE) Director John Morton. The memo discussed how ICE should use its “limited resources” to remove those illegally in the U.S.  ICE is an enforcement agency, but decided that the favorable exercise of prosecutorial discretion entailed not asserting the full scope of its enforcement authority.  That is, ICE was going to spend less time focusing on “low-priority” removal cases and would instead prioritize high-priority cases including the “worst” offenders: national security risks, criminal convicts and those who repeatedly violate immigration laws (which is, again, a civil matter).

As of November 2011, the first round of docket review had begun. Department of Homeland Security (DHS) immigration attorneys would examine all new cases coming into their offices, with the goal of closing low-priority cases, before they progressed much further into the court system.  High-priority cases are placed onto an expedited calendar for judges to order removal.

Cases that qualify for prosecutorial discretion will be closed, but not dismissed.  What this means is that these cases can be re-opened at any time, particularly if the immigrant commits a crime or a new immigration violation.  Immigrants whose cases are closed may stay in the U.S., but are in legal limbo, without any immigration status.

The move was criticized by hardline Republicans who considered it a “back door amnesty” for illegal immigrants. And Democrats, immigrants rights’ groups, and the immigration attorneys association are equally chagrined.  ICE was slow to issue directions/policy/training/guidance to DHS attorneys in terms of prioritizing cases, clarifying who qualifies for prosecutorial discretion, or otherwise direct government attorneys in the right direction. What has resulted is spotty nationwide application in the immigration courts of a policy that affects hundreds of thousands of people.

The Rant

I’m not even sure where to begin ranting about prosecutorial discretion.  It’s not amnesty, that’s for sure.  The only advantage to immigrants in removal proceedings is that they get to stay in the U.S. a little longer.  There are no work benefits that come with that, though, or anything else. It’s just an extended period of limbo and uncertainty.  I don’t know about you, but to me, that sounds terrible.  And, let’s be clear:  high-priority cases represent a mere fraction of those actually before the immigration courts. So, DHS and ICE are trying to prosecute maybe hundreds of cases at the expense of thousands. And, of course, guidance on exercising discretion is still being issued, so the policy is being haphazardly applied, at best. Honesty, if we’re going to have an honest discussion of immigration reform in this country, this is NOT the place to start. The President had a real opportunity to make some solid, lasting changes to the immigration court system and squandered that opportunity.  For a President who values progress, prosecutorial discretion is a step in the wrong direction.

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