Friday, February 15, 2013

The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez

Dear Friends,

Here is an abstract of a forthcoming article I recently posted on SSRN.

The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez

Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, U.C. Davis


This Article is an account of my failed efforts to stop the forced deportation of Oscar. Martinez and the lessons I learned from that experience.  My representation of Mr. Martinez centered on navigating the administrative process of requesting prosecutorial discretion from Department of Homeland Security (DHS) officials.  As a result of my experience with the process and what I have observed of others pursuing the same process, I have come across disquieting evidence of inconsistencies in the program and have concluded extensive changes to the process are necessary.  Sympathetic applicants, like Mr. Martinez, highlight the challenges in exercising prosecutorial discretion during the deportation process and the need for cultural and procedural reform of immigration policies.

I begin this Article with an account of how I came to represent Oscar Martinez, largely through the urging of his stepdaughter, Lorena Cintron and a description of Lorena and Mr. Martinez.  Next, I review the “Morton Memo,” from John Morton, the Director of the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, which establishes guidelines for exercising prosecutorial discretion. According to these guidelines, there is strong support for the argument that Mr. Martinez’s deportation should have been terminated. 

I provide an overview of the procedural history of the Martinez case prior to my involvement.  Three years before Mr. Martinez became my client he qualified for relief and, in fact, was granted relief by an immigration judge.  However, the government was successful in appealing his case and Mr. Martinez was ordered deported.

In order to contextualize my efforts at staving off the deportation order by invoking the ICE guidelines for prosecutorial discretion, I discuss the past and recent history of prosecutorial discretion in deportation proceedings and the problem of administrative discretion standards in that context. Some ICE agents are inculcated with an enforcement culture that breeds resistance to a more compassionate approach to enforcement and avenues for the review of these discretionary standards are limited.  As a result, inconsistent decisions regarding discretion in deportation proceedings have emerged across the country.

Changing the culture of enforcement without exception within the immigration agency would undoubtedly be difficult.  Given the challenges involved, I offer suggestions on how to decrease the inconsistencies through various administrative structural actions and reform of the ICE enforcement culture.  Finally, I conclude this Article with some reflections on Mr. Martinez and his family.   

The full draft of the article can be downloaded at SSRN.


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