Sunday, September 4, 2011
This blog post is authored by Shoba Sivaprasad Wadhia, Clinical Professor of Law and Director Center for Immigrants' Rights. She has a forthcoming law review aricle on deferred action and transparency, arguing that the lack of transparency around the White House policy is adding fuel to the fire.
On August 18, 2011, the White House announced that it would review 300,000 deportation cases currently in the courts and through its exercise of prosecutorial discretion, place low priority cases on hold through a procedure known as administrative closure. Senior administration officials proclaimed that implementing this policy would allow undocumented immigrants to stop “clogging the system.” A blog from the White House and letter from the Department of Homeland Security’s Secretary suggests that cases pulled out of the docket would be eligible to apply for work authorization.
In the days that followed this announcement, immigration attorneys and advocates hailed the policy as a commonsense approach during a time of limited resources and legislative stalemates. They also expressed concerns about how the “new” deportation review would enable unscrupulous individuals to dress up as lawyers and market a new green card program to noncitizens. Meanwhile and predictably, the “new” deportation policy sent shockwaves through politicians and groups who were quick to label the program a “backdoor amnesty.” But behind the shock was little substance or understanding for the scope, limitations, and importance of prosecutorial discretion.
Prosecutorial discretion has been part of our American legal system for more than a century. In the immigration context, the motivations behind prosecutorial discretion have rested on using limited resources wisely by focusing on the truly dangerous and by placing cases involving compelling humanitarian circumstances on the backburner. As noted by the agency, ICE has the resources to remove about 4% of the deportable population. Since the 1970s, immigration agencies have published nearly one dozen memos on prosecutorial discretion. The White House policy appears to rely on two of these memos: 1) an ICE memo dated June 30, 2010 pertaining to ICE’s civil enforcement priorities and 2) an ICE memo dated June 17, 2011 discussing the criteria that officers should use when making prosecutorial discretion decisions.
Despite what the name suggests, prosecutorial discretion can be exercised by immigration attorneys and non-attorney employees in every branch of the Department, not just “prosecutors.” Prosecutorial discretion can be exercised at any stage of enforcement including but not limited to prior to an arrest, detention or removal. Importantly, a “grant” of prosecutorial discretion does not lead to legal status nor does it confer a benefit or right of review. An unofficial ICE “fact sheet” on the White House policy confirms many of the longstanding limitations of prosecutorial discretion, and warns noncitizens that reporting themselves to the immigration agency for consideration under the new policy is a risk that can lead to deportation.
Leaving aside the politics of what motivated the White House policy, the Administration deserves some credit for acknowledging the importance of prosecutorial discretion, attempting to assemble a process that involves the relevant subagencies in DHS and DOJ, and possibly giving each noncitizen in removal equal access to consideration for prosecutorial discretion. But like with previous memoranda about prosecutorial discretion, how the White House policy will be implemented is vague at best. The Secretary’s letter to Senator Durbin states:
[DHS and DOJ] have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal.
Three important concerns and questions about the White House policy involve the lack of accountability when cases that appear eligible for prosecutorial discretion are nevertheless targeted for enforcement; the lack of transparency by the Departments about the procedural steps and substantive criteria that will be applied in executing the policy; and the inevitable pitfalls of prioritizing over-inclusive conduct (for example, the civil enforcement priorities memo includes individuals without criminal convictions and those who enter without inspection) over compelling humanitarian and equitable qualities. But these are not new concerns. If the White House is truly seeking to implement a “new” policy on prosecutorial discretion, the policy must be clearly stated to avoid misinterpretation; involve input from the public to boost acceptability; and establish some form of review to help correct errors and ensure that like cases are treated equally.