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Administration Puts Secure Communities Imbroglio To Rest With Prosecutorial Discretion Applicability To 300,000 National Immigration Court Caseloadby Alan LeeWe are all on tenterhooks to see how the exciting Obama Administration announcement on August 18, 2011, will be implemented that the Department of Homeland Security (DHS) and Department of Justice (DOJ) will be reviewing the current deportation caseload to prioritize the removal of people who have been convicted of crimes in the United States or pose a security risk, and take steps to keep low priority cases out of the deportation pipeline. It appears that Mr. Obama in one swoop has muffled criticism of his Secure Communities public-relations nightmare with the immigrant communities. He had previously faced withering criticism as the original proposed purpose of the program, protecting communities from violent criminals, had been statistically shown to be secondary to another purpose, the detention and deportation of non-criminal aliens, many of whom were caught for minor misdemeanors or civil offenses. The criticism became overwhelming two weeks ago when the Administration scrapped its memorandums of understanding (MOU's) with 40 states and announced that it did not require agreements in order to have the fingerprints of anyone arrested and sent to the FBI further transmitted to another federal agency, the Department of Homeland Security. With the announcement and concurrent unveiling of a plan by DHS that an interagency team of DHS and DOJ officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation (OIL) will identify on a case by case basis low priority removal cases that should be considered for an exercise of discretion including after a final order of removal, the starch has largely been taken out of those at the agency who were enthusiastic to deport non-criminal aliens caught by the Secure Communities program. The significance of ICE Director John Morton's June 17, 2011, memorandum of prosecutorial discretion was largely lost in the din over the Secure Communities program as there were questions even in this corner as to what effect the memorandum would have since many of the factors to be considered in the exercise of prosecutorial discretion could only be determined after 48 hours of detention, at which point by law ICE had to make a decision of whether to issue a notice of detainer. (See our article, "ICE Halfway Solution not the Answer to Secure Communities Problem", Immigration Daily, June 20, 2011). The memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" spelled out a set of factors to be considered by the agency's officers, agents, and attorneys, with Mr. Morton saying that the list was not exhaustive and no one factor determinative. The list of factors was:
1. the agency's civil immigration enforcement priorities; Once in immigration detention, there appeared to be no transparent check and balance on ICE officers, agents, and attorneys on the use of discretion. The applicability of prosecutorial discretion to the 300,000 cases in immigration courts nationwide is a game changer psychologically as prosecutorial discretion in the past has been perceived as an insular policy infrequently applied by ICE and usually refused by government attorneys after issuance of a notice to appear in the immigration court. The idea that an undocumented immigrant caught up in the Secure Communities program who has no criminal record may have his or her case administratively closed somewhere down the line by either an ICE agent, officer, or attorney must be a heavy discouragement to some ICE officers who would otherwise matter of factly issue notices of detainer. It should also be noted that although ICE and not the immigration court has the power of prosecutorial discretion, immigration judges oftimes exert effective pressure on government attorneys to modify their stances on cases. A further potent discouragement to the zealous enforcer is the idea that when reviews of individual cases result in their being closed, the individuals may now be able to apply for certain immigration benefits, including work authorization. It is too early to offer congratulations to Mr. Obama for this move which has revitalized his popularity in the immigrant communities as the proof lies in the pudding of how the policy will be implemented in the months ahead. But at the present time, the August 18th announcement appears to be popular not only in the immigrant communities, but with the American public at large.
© 2011 Alan Lee, Esq.
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