Sunday, September 25, 2011

Immigration Rights | Prosecutorial Discretion


Sometimes I hear interpretations from clients that contrast with what immigration lawyers know to be true.
Rumors began when Homeland Security Secretary Janet Napolitano, acting on behalf of President Obama, announced in a memo that the Department of Homeland Security will conduct a case-by-case review of about 300,000 cases currently in removal proceedings. The government will determine which care are low priority, which if so may close pursuant to prosecutorial discretion.

The policy is more political than practical, and it is certainly not ground-breaking. With this policy, the Obama administration can report to its constituents that it put forth a policy that targeted violent immigrants, protected favorable immigrants, and lessened immigration courts’ overburdened dockets.

In truth, barely so. According to an inside political source, an ICE officer reported that it was “business as usual,” at least for now.
The results from the new policy remain to be seen, but according to immigration lawyer communities, it is highly likely that the new policy will only minimally impact the status quo.
Prosecutorial discretion does not change any laws. It will enable a working group to look through current pending immigration cases – in Seattle immigration cases may be pending for six months before the hearing is set – and decide which ones should be weeded out.
The basis to weed out the cases is a criteria that examines various positive factors, like if the immigrant arrived in the US since childhood, minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans of the armed services, and even disabled people. ICE attorneys, the government attorneys that prosecute immigrants, will review every case scheduled in the next 1-2 months and will close the cases that meet the criteria.
Normally an immigrant faces removal proceedings because ICE agents apprehend the immigrant after he or she committed a crime, like a DUI, shoplifting, or domestic violence. The immigrant serves time in jail, and then immediately goes to immigration proceedings.
So, the practical implication of this prosecutorial discretion policy is that it will not affect most people in immigration proceedings, since most will not qualify. For example, if a person who came into the US as a child and has not criminal history but for a, he the ICE attorneys will highly exercise prosecutorial discretion and give the immigrant a free pass. He will still have to go through immigration proceedings and taxpayers will pay the courts and government attorneys to do it.

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