Prosecutorial Discretion: Recent Advocacy Timeline

The squeaky wheel  gets the oil.  That is probably the best way to summarize the recent timeline for the use of Prosecutorial Discretion. 

The backdrop for the recent Prosecutorial Discretion initiative has come from the record numbers of people deported, or removed, by the Obama Administration.  Overall, in FY 2011 ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals — the largest number in the agency’s history.  LINK.  Of course, these numbers have left many potential voters disillusioned with President Obama.  Many ask how the President could on the one hand say the Immigration System is ‘broken’ and on the other hand deport records numbers of undocumented immigrants.  With the upcoming Presidential Elections, President Obama cannot afford to ignore this group of people.  

Against this backdrop, we saw the prosecutorial discretion memo issued by Immigration and Customs Enforcement (“ICE”) Director John Morton on June 17.  This memo directed ICE Agents to exercise Prosecutorial Discretion in favor of persons who are not criminals and have been in the country since childhood, have strong community ties, are veterans or relatives of persons in the armed services, are caregivers, have serious health issues, are victims of crime or otherwise have a strong basis for remaining in the United States.

In a subsequent announcement by The Department of Homeland Security (“DHS”) on August 18, DHS announced plans to review the approximately 300,000 cases pending before the Executive Office for Immigration Review (EOIR).

However, since the Morton memo from June 17, ICE has had a very spotty record with regard to Prosecutorial Discretion.  American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) released a survey on November 9 finding that Immigration and Customs Enforcement (ICE) officers and attorneys across the country are applying different standards on prosecutorial discretion despite the issuance of national policy memoranda this summer.  AIC and AILA announced this survey in a Release also on November 9.  See Press Release.  Key findings from the AILA/AIC survey, Holding DHS Accountable on Prosecutorial Discretion, highlight the fact that while a few ICE offices have begun to implement the guidance, most have not and many are actively resistant. Some officials said their jobs are “to arrest and deport.”  The Executive Summary for the survey reveals that the majority of offices ICE agents, trial attorneys and supervisors admitted that they had not implemented the memoranda and there had been no changes in policy or practice.

It is refreshing to see that this advocacy has had an effect.  Julia Preston from the New York Times revealed on November 17 that the Department of Homeland Security will begin a review of all deportation cases before the immigration courts and start a nationwide training program for enforcement agents and prosecuting lawyers, with the goal of speeding deportations of convicted criminals and halting those of many illegal immigrants with no criminal record.  The review and the training, which will instruct immigration agents on closing deportations that fall outside the department’s priorities, are designed to bring sweeping changes to the immigration courts and to enforcement strategies of field agents nationwide.   NY Times. 

The squeaky wheel does get the oil.