Prosecutorial Discretion – Will it really become a reality?

The Department of Homeland Security has issued a new directive regarding the implementation of the Morton Memo on Prosecutorial Discretion. This guidance is critical for the Immigration and Customs Enforcement to review 300,000 immigration cases to assess whether ICE should seek removal hearings against an individual alien. The New York Times on November 17, 2011 noted that individuals who are high priority will be put on an expedited calendar. The exercise of prosecutorial discretion will be in phases, with the first to pose an initial test run and the second to specifically focus on the Immigration Courts in Baltimore and Denver. With the average wait time in the Immigration Courts now totaling 482 days, this new directive is a necessary step for making the immigration courts more efficient. The problem is worse for the immigration courts in California with an estimated wait time of 666 days.

In its guidance to ICE attorneys, the Department of Homeland Security laid out several factors that should be considered if an individual should face an expedited hearing. These include individuals who are:

· suspected terrorist or national security risk,

· an individual who has been convicted of certain felonies or serious misdemeanors,

· gang members, and those who entered the country illegally,

· person who entered the country illegally or violated the terms of admission within the last three years,

· individual who has been previously removed from the country

· individual who has been found by an immigration officer or immigration judge to have committed immigration fraud

· individual who otherwise has an egregious record with immigration

Cases in which ICE attorneys are to exercise prosecutorial discretion include:

· members of the Coast Guard or Armed Forces

· children who have been in the U.S. for more than five years; victims of domestic violence; an individual who has close family ties to the U.S.

· individuals over the age of 65 who have been in the United States for at least 10 years.

· Victims of domestic violence

· LPR for ten years or more and who have a single, minor conviction for a non-violent offense

· Administratively closing some asylum cases in exchange for abandonment of work authority and return to status

The Department of Homeland Security stresses that the factors must be assessed within a framework of totality of the circumstances and there is no one bright-line test for exercising prosecutorial discretion. Of particular interest is that an individual can submit materials to ICE to help them in their decision as ICE attorneys are not restricted to just looking at the official record on the alien.

Several members of Congress on Task Force on Secure Communities stated their support for prosecutorial discretion in a letter to Department of Homeland Security. They believe that prosecutorial discretion is an important law enforcement tool and note that it is an administrative agency who is entitled to do so.

One problem that may emerge as ICE attorneys try to implement prosecutorial discretion is that each OCC has been instructed to create their own standard operating procedure for attorneys within that OCC office to follow. Rather than having uniformity within the Immigration Court system, aliens in one immigration court may have better likelihood of having prosecutorial discretion exercised because of the guidelines set by the OCC for their area. Individuals who are granted prosecutorial discretion will stay in the same status which will prevent them from becoming productive American citizens. The Department of Homeland Security must develop guidelines for those that receive favorable prosecutorial discretion to create an eventual pathway to citizenship.

Finally, the Obama Administration has pledged to keep up its deportation efforts. Last year, the administration deported 400,000 illegal aliens and the secretary of the Department of Homeland Security has pledged that the number will be matched this year. With 300,000 cases in the Immigration Court system and a DHS goal of deporting 400,000 individuals, one can’t help but wonder how much prosecutorial discretion will be exercised. Also as the Task Force Committee make abundantly clear this may just be a veneer to sugar pill “secure communities” that has lost respect of the communities who wish to exit it and created fears of a police state among others.

Note: The American Immigration Council’s Article on Prosecutorial Discretion was the source of some the facts in this blog.