Prosecutorial Discretion and the Illegal Aliens22 November 2011
With U.S. presidential election coming up next year, the issue of immigration reform, which was President Obama’s campaign promise to Latinos and other immigrant voters, never came to fruition. It is sad that while immigration policy has not changed to reform the broken system, more than one million individuals were deported to their homeland in the last three years.
Need a Dancing Partner
In one of the public speeches of President Obama, he mentioned that he needs a ‘dancing partner’ to effect immigration reform. The US Congress is currently comprised of a lot of conservative Republicans who oppose any form of immigration amnesty and will obviously not pass any immigration reform law. In fact the most compassionate immigration bill, which is the federal DREAM Act that will provide undocumented students an opportunity to legalize their stay, is still awaiting passage. Unable to find its dancing partner, the Obama Administration acted alone and used the power of the executive branch to come out with what it calls “prosecutorial discretion”.
“Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide whether – and to what degree – to enforce the law in a particular case. In immigration law, the Immigration and Customs Enforcement (ICE) or prosecutors may exercise their discretion in deciding to file deportation cases, enforce a deportation order or grant a deferred action. This exercise of discretion depends on the guidelines that were set by a policy memorandum.
It is a fact that there is an increase in the deportation of individuals who are without legal status. Most of those who were deported have been long time residents of the United States and do not have any criminal records. Families being forcibly torn apart became a common heartbreaking story in the immigrant community. Realizing the inhumane impact of deportation on those who have not done harm to society, Obama created a distinction between deportees who are low in priority and those who are high in priority.
To guide the Department of Homeland Security’s Immigration and Customs Enforcement, a June 17, 2011 memorandum from the ICE Director John Morton was released. In this memorandum, guidelines were established for ICE in deciding when an individual may be removed from the country and when he should be spared from deportation.
Two months thereafter, in August 2011, President Obama reiterated this policy. Low priority deportees facing removal proceedings will have their cases administratively closed. They will also be granted employment authorizations. High priority cases or those who have done harm to society and are threats to public security shall receive high priority treatment by ensuring their deportation to their homeland.
Excited with the announcement of President Obama, thousands of individuals in deportation hearings became hopeful that their cases would be dismissed and that they would be receiving authorizations for employment. Five months after the initial pronouncement of ICE Director John Morton, despite the policy guidelines and the pronouncement in August 2011, majority of requests for prosecutorial discretion have yielded negative results. The review of 300,000 removal cases remains to be implemented in a pilot program that will take place in two jurisdictions.
In the meantime, ICE continues to remove or deport individuals despite discretionary factors that would warrant a closure of their cases. One ICE agent, when presented with the request for prosecutorial discretion, declined favorable exercise of such and said that he is” just doing his job”. A young Filipino who migrated to the U.S. when he was 15 years and has been in the U.S. for 16 years is being deported because of his parent’s prior denied political asylum case. Formal requests to take into account compassionate factors were ignored not until active community advocacy were taken.
In a recent gathering of the American Immigration Lawyers Association (AILA) in California several law practitioners expressed the same disappointment with the lack of responsiveness to what is being touted as current administration policy. A recent study of the American Immigration Council showed that while there were cases granted on the basis of prosecutorial discretion, statistically, there were much more cases that were declined. The report which this office released jointly with AILA, included information about all 28 ICE offices nationwide, shows that” most ICE offices have not even implemented the two headquarters’ memos. These discrepancies reflect a need for ICE and Department of Homeland Security (DHS) leadership to issue additional guidance to its rank and file.”
No Positive Impact
The recent policy of the Obama Administration to grant prosecutorial discretion against illegal aliens who are no threat to US society is a welcome development in the immigrant community. But the true measure of any given policy can only be based on how well such policy is implemented. Without proper implementation of the full length, breadth and spirit of the policy, the help and succor that the immigrant community was hoping for cannot be realized.
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