Deportation and “Prosecutorial Discretion:” A Step in the Right Direction

In the heated battle between pro and anti immigration supporters, Barack Obama and his administration delivered a significant blow to conservatives recently when US Immigration and Customs Enforcement (“ICE”) issued a memorandum to all of its deportation officers detailing new procedures and guidelines. Under these new guidelines, federal immigration officials now have “prosecutorial discretion” to dismiss deportation cases based on the reasons for the immigrant’s detainment. More specifically, the ICE memo states that “if no investigations… or serious adverse factors exist, the offices of chief counsel should promptly move to dismiss proceedings.” Therefore, federal immigration officials now have the discretion to determine what constitutes a “serious adverse factor” in a deportation proceeding, and they have the authority to then either dismiss or pursue the case based on their analysis of the circumstances (regardless of the immigrant’s Green Card or visa status).

This change in policy is likely to have a very noticeable impact on immigrants in deportation proceedings. With an estimated 17,000 pending removal cases, there have already been reports of cases being dismissed by the Federal Government due to the benign nature of the case. For example, there are many immigrants who face deportation due to the fact that they were stopped by a police officer during a routine traffic violation, and were then discovered to be illegally in the United States. We are now receiving reports that these types of cases are being regularly dismissed by the Federal Government.

With very limited resources and an increasingly tight budget, it makes fiscal sense for the Federal Government to drop these relatively harmless cases. Otherwise, had the Federal Government continued to pursue all deportations without any discretion regarding the factors for removal, significant amounts of money would be lost on the detainment of thousands of immigrants (i.e. food and lodging), the prosecution of those immigrants (i.e. legal and court fees), and airfares to return the immigrant to his or her home country. Conversely, by allowing the immigrant to remain in the United States, this money spent on the deportation process is not only saved, but the Federal Government also continues to collect taxes from the immigrant (as most immigrants, legal or illegal, pay taxes). The net difference, economically speaking, is truly significant.

Predictably, this new policy has unfortunately raised the ire of many politicians and conservatives alike. States like Alabama, Georgia, and Arizona, who had attempted to circumvent federal immigration laws by issuing state mandates requiring police officers to check immigrant statuses whenever possible now must accept that their power over immigration is severely limited. For example, even when a state law causes an immigrant to be detained and possibly deported, by law, the deportation itself must be enforced by the Federal Government (as opposed to the individual state governments). By adding this new federal policy which directs federal officials to dismiss deportation cases that do not have “serious” adverse factors, the states’ efforts to deport these harmless immigrants are essentially nullified. To fully understand this concept, please consider the example where an Arizona police officer pulls an immigrant over for having a broken taillight on his car. Upon discovering that the immigrant is illegally living in the United States, the state police officer then sends the illegal immigrant through deportation proceedings. However, by law, the Federal Government controls these deportation proceedings. Consequently, upon learning that the illegal alien is now facing deportation simply because he had a broken taillight (and assuming no other dangerous or serious issues are identified), the Federal Government will then likely release the immigrant back into the very same state that (unsuccessfully) tried to deport him. This undoubtedly sends a very strong message to state governments not to interfere with the Federal Government’s legal authority over immigration matters, although, of course, that was not the main reason for the new memorandum.

These actions by the Federal Government clearly indicate that the Obama Administration does not want to waste any more resources on deporting illegal immigrants that contribute to American society. However, due to the polarization of Congress on almost all immigration matters, the only way to actually see immigration changes on the ground (like the one discussed in this article) is unfortunately only through “policy” changes and “discretion” of federal immigration officers. Sadly, these changes are not appearing in the law itself because Congress cannot reach that level of agreement. Consequently, if the next United States president is conservative, it is very likely that we will see policy and “prosecutorial discretion” shift in the exact opposite direction.

Undoubtedly, this policy is a step in the right direction for those who wish to have an economically viable Federal Government as well as a growing economy, but true and lasting change will only occur when Congress manages to put their differences aside and enact new immigration legislation.

 

 

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

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