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Prosecutorial Discretion – Amnesty By No Means

by Bano Itayim, Attorney and ImmigRanter at Slowik & Robinson, LLC

SRLaw-No-amnestyAt a time when immigration is a hot button issue, and the nation focusing on who will become the next president, the Obama Administration has deported nearly 400,000 immigrants since 2009.  The goal – to deport the bad guys – the criminals. While the administration is focusing on the bad guys, who is focusing on the good guys? Under the Obama Administration the application of the laws governing immigration is harsher than they have ever been. However, the federal government is exercising its control over state authority by emphasizing the use of what is called Prosecutorial Discretion.

Prosecutorial Discretion is exactly what it sounds like: prosecutors using their discretion on deciding which cases to bring before the courts. In this situation, the prosecutors being Immigration and Customs Enforcement attorneys. They choose whether a case should go forward at all, or to what extent the letter of the law should be followed.  In June 2011, a memo was issued by the Chief Legal Director of Immigration and Customs Enforcement (ICE), John Morton, basically reminding ICE officials of their duty to use good judgment in the prosecution of immigration cases; however, nothing more became of that directive.

In November 2011, another memo was issued. This memo listed several factors for ICE to consider when exercising discretion.  This memo required  ICE to begin auditing their cases to see who might be eligible to benefit from a favorable exercise of discretion – the goal – reducing the heavy backlog our court systems are currently facing. As it stands now, someone in removal proceedings has to wait 3-4 years before their court date. The removal process is usually comprised of a minimum of two hearings before the immigration court: the master calendar hearing and the merits hearing. The former hearing is basically a pretrial, and the latter hearing is essentially a bench trial for the foreign national to plead his or her case.

The immigration control system is operating contrary to the original intent, which was to make the system more efficient by weeding out  low-priority cases and allowing resources be spent on prosecuting immigrants engaged in criminal activity, deporting those who are really the bad guys. It seems as if the efficiency targets a small percentage of these types of cases.  Yes we are going to prosecute people who have some sort of criminal background, but these cases constitute what may be 6% of all immigration cases currently pending before the courts. The remaining 94% see a 3 year wait between their initial hearing and their final immigration hearing.  This means that they must accept another three years in this very tenuous legal situation.

While Prosecutorial Discretion may be considered a small victory for some, it is by no means amnesty. The case is not terminated within the court system; it is simply put aside, meaning it can be reopened at any time.  So for the time being, the foreign national can continue to live in limbo (but without the fear of being deported), in the same status they were in before, and without work authorization. Thank you government.

The Rant

As of April 2012, ICE has reviewed 219,554 pending cases, approximately identifying only 16,544 or 7.5% for prosecutorial discretion. Our immigration control system is not weeding out those cases that target 94% of the immigrant population. Far more resources are being spent on removing people who have been here for long periods of time and who may have qualifying relationships with citizens. Maybe their children or a spouse are U.S. citizens. A lot of our resources are being used to remove these people. Alternatively, they could focus their resources on removing people that have violated the immigration laws repeatedly. These are the folks that are far less desirable than somebody who is just working here to support his or her kids, somebody who has raised a family here, somebody who has been here for years, may be even decades. Those are the good guys. The guys who are mixed up in this broken system and will have to wait years before they see the inside of a courtroom.

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