Thursday, December 8, 2011

Prosecutorial Discretion and Post 9/11 by Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia 

On December 6, the New York Times reported about the Department of Homeland Security’s decision to furnish some 72 Indonesians living in New Jersey with one-way plane tickets to Indonesia, cancelling supervision orders they had been previously issued by DHS. “Prosecutorial discretion” refers to law enforcement’s authority to decide whether or not to impose the laws against a party, and DHS’s decision to cancel the supervision orders reflects one form of this discretion. For more than thirty years, the immigration agency has utilized prosecutorial discretion to balance its finite resources and also recognize the compelling humanitarian issues faced by certain noncitizens living in the United States. DHS’ decision to deport these Indonesians despite a long-time residence, family and professional ties in the United States and no criminal histories is puzzling and inconsistent with the DHS’ own policy. Some of the Indonesians facing deportation entered the United States on valid visas and registered under a controversial post 9/11 program (Download NSEERSexamples) known as “special registration” or the “National Security Entry and Exit Registration System” (NSEERS). The NSEERS program was created in the wake of 9/11 and designed to find future terrorists by interrogating, fingerprinting and photographing certain foreign nationals admitted into the United States on temporary visas. The NSEERS program was expanded to reach certain visa holders in the United States who were men of certain ages and from a list of 25 Muslim-majority countries (including Indonesia) designated by the government—the program was controversial because it targeted people based on characteristics Americans would ordinarily consider unacceptable (nationality, sex and religion) and was implemented without proper resources or safeguards. In exchange for their compliance with the NSEERS program, thousands of registrants were detained, denied access to a lawyer and/or served with charging papers for a deportation hearing. Recognizing the program’s harsh human consequences and minimal national security benefit (terrorists do not voluntarily report themselves to the government), the DHS suspended portions of the NSEERs program in 2003 and this past April, published a rule that effectively terminated the program for nationals and citizens categorically subject to NSEERS. As illustrated by the story of the Indonesian community in New Jersey, the NSEERs program continues to affect many families who have lived in the United States for now more than 10 years, been gainfully employed, built families and/or contributed in meaningful ways to the United States. Without a full repeal of the NSEERS program and formal relief for those unjustly targeted it is critical that DHS exercise prosecutorial discretion favorably towards those affected by NSEERS.

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