Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked

September 2, 2011
By Bonnie Stern Wasser on September 2, 2011 11:52 PM |

On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are "low priority" and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying "prosecutorial discretion" criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is "prosecutorial discretion"? It is the agency's and individual law enforcement officer's decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can't do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency's authority is the discretion to determine how the agency will enforce the law within the bounds of the agency's legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is "Backdoor Amnesty"

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is "backdoor amnesty.". This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants' rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants' advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest "Deporter-in-Chief" in the nation's history, his office is exhibiting some common sense by having DHS concentrate its limited resources on "high priority" cases, depending upon how that is ultimately defined and actually carried out.

What is "amnesty" anyway and why is it such a bad word? It is a forgiveness for a slight or violation of law. If this were an amnesty policy or law, such as the program of the 1980s, people without valid status would actually receive an immigration benefit that has value such as a green card or temporary or permanent residence. Congress, in its infinite wisdom, has chosen not to act to provide legal status for 10-12 million undocumented residents of the U.S. The President and his administration do not have authority to change the law about who can receive green cards, and they will not be issuing any here. For reasons many of us cannot fathom, many in Congress feel "amnesty" or "forgiveness" are bad words and policy. Instead, they say it is better for our country not to forgive people who violated civil laws for a chance to improve their lives. Instead, our policy should be, and is, to keep millions of people living in the underground or to split them up from legal or citizen spouses and children. It costs the taxpayers $5.2 billion a year to deport 400,000 (excluding the costs for EOIR), leaving the remaining single US citizen parents or parentless US citizen children to use state welfare resources. Alas, Congress has also chosen not to fix the legal immigration system that encourages people to come illegally in the first place. Our current system from the 1950s lacks appropriate legal categories for the jobs we need to fill or the people we need to attract. And, of course, the complaints about prosecutorial discretion ignore that this administration has deported more people than any administration, and illegal immigration is at its lowest point in decades.

MYTH 3: One can file an application for prosecutorial discretion as if it were an immigration benefit like residence or a work permit

No, prosecutorial discretion is NOT about giving people much coveted legal temporary or permanent residence, or U.S. citizenship or any other legal status. It is about whether to enforce a law against a person. There are many ways prosecutorial discretion can be exercised favorably, such as:
- A decision not to arrest someone for an immigration violation.
- A decision not to detain someone arrested for an immigration violation.
- A decision to release someone already detained on one's own recognizance or by posting a bond, parole, or under an order of supervised release.
- A decision not to issue a "Notice to Appear" that initiates removal proceedings.
- A decision not to continue with Immigration Court removal proceedings. This could lead to two possible outcomes: Termination of proceedings, as if the person was never in proceedings at all, or "administratively closure." Administrative closure requires agreement of all the parties, and it means the case is taken off the court's calendar for now, but the court retains jurisdiction. If a case is terminated, DHS can re-institute removal proceedings by serving a new Notice to Appear on the immigrant and with the court. Court cases are often terminated already, especially where the immigrant has a right to eligibility for relief before DHS. Judges do not want to tie up their calendars and set cases out a year or two that can be resolved favorably before DHS. An example would be a person who is eligible for a green card based on marriage to a citizen.
- A person known to the government and believed to be out of status or has already been ordered removed but is placed in "deferred action status." This status is used all the time over the years. Work authorization is already available based on economic necessity. But, it is not a status per se. Removal or other action is just delayed.
- A decision to "stay removal" - similar to deferred enforced departure, usually occurring during an appeal proceeding.

NONE of these options grant the individual any right to remain in the U.S. long term. NONE of these options grant the individual a green card or temporary or permanent residence or a work permit (except presently for deferred action). If a person without status is not arrested, detained or placed in removal proceedings, he or she remains in illegal status. Nothing really changes for them except the threat of proceedings or removal is minimized, at least temporarily. If a person in proceedings is deemed to be "low priority", if the case is terminated, the person remains without status with no case resolution, but the threat of removal proceedings is off the plate...for now. If the case is administratively closed, the case is off the court's calendar and the person remains without status...for now.

In ALL of the situations above, things can change at any time. Government policy can change, any new serious facts such as a person committing a crime, can put the person back in proceedings. Congress can enact a law that changes immigrants' rights or procedures.

There is some reference in the DHS memo that work permits may issue for temporary periods, and it looks like this may happen for administratively closed cases, but the details have not been released. Right now, there is no special program for obtaining work authorization because of prosecutorial disrection. Even if a work permit issues, it is not evidence of legal status in the U.S. and it will be temporary and probably renewable.

The most important thing to understand about any of these possibilities is that "he who granteth can taketh away." In other words, removal proceedings can always be instituted or re-instituted by another change in policy or worse, a change in the next administration, or a change in your own personal facts (you violate a visa in the future, you come back to the U.S. illegally, you get into trouble with the law or use false documents). The purpose of the August 18 memo is to reduce the backlogs in the court system. So far, there are no rules or guidelines about what cases will be deemed "low" or "high priority."

Finally, nothing in the realm of prosecutorial discretion requires the DHS to act favorably on your behalf. DHS has discretion to make a decision about prosecution one way or the other. There is no right to appeal except perhaps to a supervisor.

MYTH 4: I haven't been arrested before, so this means they won't arrest me now if I am undocumented.

If you are out of status and have not yet been placed in removal proceedings, at some point if you become known to the immigration authorities, DHS will decide then whether or not, based on your individual facts, you should be placed in removal proceedings - or not. See the ACLU website on "Know your Rights" in case you are stopped by an officer.

MYTH 5: I have a good case for prosecutorial discretion, so I want to step forward and apply for it.

Prosecutorial discretion is not an application that one applies for. It's really a negotiation with either an immigration officer in the field at the time of arrest, or with officers or a judge at a detention facility (if requesting release), or with a government prosecutor with approval from the immigration judge to request that they take a particular action. The good facts in your case must outweigh the bad facts and you must present evidence to support your request. As noted above, the exercise of prosecutorial discretion comes up in several contexts. If you are not already known to the government and step forward, you run the risk of being placed in removal proceedings if you are out of status. You should consult an attorney to discuss your history and strategy.

MYTH 6: Getting my removal case terminated or closed is the best option for me.

Maybe yes, maybe no. Some people in removal proceedings have good facts and evidence to support an application for a benefit from removal, such as asylum, cancellation of removal, adjustment of status to permanent residence or other benefits. Of course, there is never a guarantee that even with good facts, the judge will grant a benefit in your favor. However, for some people, it may be worth continuing to proceed with their court cases because the chances of reaching a conclusion resulting in legal status or permanent residence would be better than returning to illegal status prior to removal proceedings. You and your attorney should discuss the risks and benefits of whether to continue proceedings or request that they be terminated.

MYTH 7: The notario down the street is offering me a "permiso" if I pay him "only" $100. This sounds like what I need.

Right now, it is unlawful in Washington State for nonlawyers to prepare and file immigration applications unless they meet the nonlawyer/accredited representative provisions of the Board of Immigration Appeals. See an earlier post about notario fraud. Avoid people who offer to take your money for work permits only. Work authorization is usually tied to an underlying application or status that must be on file with DHS. As noted earlier, as of this writing, there are no rules on how the exercise of prosecutorial discretion will result in work authorization.

If you think you may have a case warranting the exercise of prosecutorial discretion, then you should see a qualified immigration attorney. It is probably worth at least an hour's consultation fee to get in-depth advice for your situation. You can ask prospective lawyers in what state they are licensed and then go on to that state bar's website to verify licensing and any complaints. Here are a few resources: www.ailalawyer.com, www.aila.org, lawyers.com, justia.com, avvo.com, findlawyers.com and state and local bar association referral services. For free advice, at least in the Seattle area, try the weekly King County Bar Association Immigration Clinic (www.kcba.org), or the Latino/a Bar Association (www.lbaw.org). They may have income restrictions. See also, www.stopnotariofraud.org and the Washington State Bar Association.

An experienced immigration attorney will review your entire history and discuss any options you may have. You might have another way to immigrate lawfully. You might have options in front of the Immigration Judge. You might have no options at all. Your attorney should discuss with you what to do if you haven't yet come to the attention of DHS but have an encounter with an immigration officer in the future. More importantly, your attorney can discuss with you how to build a case that reflects that you are not a threat to public safety or national security or are not a repeat immigration violator.

MYTH 8: I was recently granted voluntary departure by DHS or the Court. This means I don't have to leave now.

NO! If you were granted voluntary departure, you are required to leave the U.S. If you have this opportunity, you should take it because if you do not leave by the agreed upon voluntary departure date, it becomes an order of removal. However, you should get advice from an attorney about whether to ask for some other types of relief, or extension of time to leave the US. The prosecutorial discretion memos do not address grants of voluntary departure and failure to depart can result in harsh consequences.

MYTH 9: I heard that LGBT, DREAM ACT, and other groups are eligible for prosecutorial discretion.

The exercise of prosecutorial discretion, i.e., whether to arrest, detain, prosecute, or continue removal proceedings, will be decided case-by-case based on an individual's own set of facts and circumstances against the various factors in the prosecutorial discretion memos. Whether one has a LGBT partner, or one could qualify under the DREAM Act, (if only the DREAM Act was a real, existing law, which it is not), will be decided case-by-case, not on the basis of large groups of people. In my blog post on prosecutorial discretion factors, there is listed the criteria that DHS and EOIR will consider in deciding what to do about an individual case. In sum, what will happen in YOUR case will depend upon YOUR facts and the advice and strategy you decide with your lawyer. The main reason to see a lawyer is to look at all the facts in your case, weigh the risks and benefits of one strategy over another, collect your evidence of favorable factors, and prepare for all contingencies.

In conclusion, the prosecutorial discretion and court backlog reduction memos are about the government's efforts to prioritize cases. If discretion is exercised favorably, at the very least some people won't be arrested who otherwise would be; some people won't face removal proceedings, who otherwise would; and some people may not be deported, who otherwise would be removed from the U.S. The program will not necessarily change one's status from undocumented to legal status, though that is a possibility if one is eligible for existing immigration benefits. Everyone's situation is unique. Therefore, it's important to have a consultation with an attorney if you think you could benefit from these policies.