Prosecutorial Discretion: Why the Need for a Training Program?

One might ask the question, why do we need a training program when the Director of Ice himself came out with clear guidelines on Prosecutorial Discretion in June?  The answer to this question really goes to the culture at ICE.

The backdrop for the recent Prosecutorial Discretion initiative has come from the record numbers of people deported, or removed, by the Obama Administration.  Of course, these numbers have left many potential voters disillusioned with President Obama.  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 who have various favorable factors as set forth in the memo. 

The boss issues a memo, and apparently many ICE agents simply ignored it.  See results of the Joint AIC-AILA survey for an early report card on Prosecutorial Discretion:   AIC-AILA

The New York Times then reported last week that ICE will now issue a training program to ‘encourage’ ICE Agents to follow the Boss’ memo. 

Nathan Pippen of the New Republic recently published an excellent article on this topic.  He distinguishes the structure versus the culture at ICE and argues that the training program goes to the more cosmetic structure and not the more important culture of ICE. 

For Structure he states: “Local ICE field offices operate with substantial autonomy, and when the Morton memo was issued in June, there was a decision, at least partially prudential, to recommend the policy—not to mandate it.  A mandate would have required an extraordinary commitment of time and resources from Washington, and exercising discretion, by definition, involves tough calls and gray areas.  Aggressive implementation was, in other words, a daunting task.”   

Regarding culture he states the following:  “Before the Department of Homeland Security (and ICE under it) was created in 2003, federal immigration policy was carried out under the control of one agency, the now-defunct Immigration and Naturalization Service (INS). Within INS there was often friction between the officials who granted benefits and those who enforced policy. Ultimately, though, the factions had to coexist within one agency, and that structure provided a check—however weak—on the enforcement arm. With that check in place, the hard-line approach never fully succeeded in monopolizing INS. That all changed with the creation of DHS and the division of INS into three agencies. ICE took over enforcement, and benefits were left with U.S. Citizenship and Immigration Services (the third agency is Customs and Border Protection). In my reporting, I’ve spoken to numerous immigration experts who believe that division allowed the worst tendencies of the old hardliners to ossify into an agency-wide culture within ICE—one that views immigration policy as being geared toward enforcement, disdains most reform efforts, and champions its own toughness against the soft-headed, weak bureaucrats in Washington.”  Pippinger 

This is an excellent explanation.  I find it rather discouraging that a local ICE agent can choose to ignore the guidelines given by the Director of ICE.  Of course, he or she is emboldened to do so when most of the other officers in the local office are doing the same thing.  

This leads into one of my own observations about DHS.  Most of my experience now is with USCIS.  The managers there generally seem toothless.  The managers do not seem to be able to discipline wayward officers.  One of the District Adjudicating Officers has had numerous complaints filed against her by different attorneys.  However, I was in front of her recently for a green card interview.  She is still there.  How many complaints need to be filed against an officer?  Morton cannot seem to enforce his memo and socal supervisors cannot seem to fire their officers.  How frustrating.