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.