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.

Immigration Rights | Border Patrol Interpretation Services for Local Law Enforcement

Six pro-immigrant groups with ties to northern Washington counties signed a letter to Washington Senators and Representatives that documented their concerns about a controversial interplay with local law enforcement and Border Patrol agencies.

The groups reported discriminatory tactics against community residents, primarily against Latino community members. The groups identified the following situations:

1.     Border Patrol agents frequently stopped vehicles away from the border under a pretext or for no reason. These vehicles were primarily full of Latino passengers. Legally there are no 4^th Amendment rights against searches and seizures for US citizens or noncitizens at the border. But, here, Border Patrol is not stopping vehicles at the border. Additionally, they do not have authority to arrest people for traffic violations.

2.     Local law enforcement is calling Border Patrol interpreters also ask questions about reported criminal activity, like for domestic violence reports. It has been reported that Border Patrol officers are conducting their own immigration investigations when they are called to interpret non-immigration issues. The consequence is that more immigrants will fear calling the police because they will fear that the police will be in contact with Border Patrol, and more crimes will go unpunished.

I would add that Border Patrol agents who conduct criminal investigations will likely produce inadmissible evidence that the courts will not consider in a trial. A police officer cannot legally just uncover any stone to find incriminating evidence, else a person’s 4^th Amendment reasonable expectancy of privacy will be violated.

The letter offers a solution to forbid DHS from providing interpretations assistance in routine law enforcement matters, unless in emergency circumstances. As an immigration lawyer, I favor this proposal.

Immigration Rights | Revenue from the Undocumented

Recently the Obama administration put forth a proposal to tax rich Americans and companies. Another method to raise revenue is to reform immigration laws that encourage undocumented immigrants to pay taxes and fines.

This is not a new idea, nor is it an idea that has only been embraced by left-leaning people. Most immigration lawyers embrace it. President Reagan adopted a law that enabled undocumented immigrants to pay a fine and earn legal status.

Already, immigrants are supposed to pay taxes. The IRS issues an ITIN number in place of a social security number that allows undocumented immigrants to pay taxes without informing the government of their identity. Yet many immigrants do not readily file for taxes because they feel generally afraid of immigration consequences whenever they communicate with a government agency.

Even though many low-skilled immigrants are not wealthy, many immigrants have large connections of friends and family to help pay for certain expenses. A payment to stay in the US is such an expense where the undocumented will pay.

Otherwise, if the undocumented will not pay, we will have a better idea of what enforcement to use.