New Guidelines For Prosecutorial Discretion of Deportation Cases

On August 18, 2011, the State Department announced that it intended to reexamine all of the cases demanding deportation (300,000 cases in total) from people living in the US. The purpose of this reexamination was to determine if some cases can be closed, while others would proceed. This was welcome news for many immigration lawyers who argued that many of the deportees were prosecuted and deported for petty offenses and did not deserve such harsh treatment. However, very few actually knew what the influential factors would be in reaching the decision on which cases to close.


On the 17th of November 2011, Immigration and Customs Enforcement (ICE), in charge of these federal lawsuits related to deportation, issued additional guidelines to help prosecutors when deciding whether a case can be closed or continued. The guidelines incorporated many factors to consider when making a decision, but the basic idea was to continue with legal proceedings for deportation against immigrants who are a danger to society or had proven to be untrustworthy and to close cases against immigrants that had shown themselves to be functioning and valuable members of American society.


This innovative policy regarding deportation cases is not only logical but also commendable, saving immigrants who actually contribute to their communities from deportation as well as reducing expenses for the US government. For example, not filing claims and dropping cases saves the US government unnecessary legal and maintenance costs, and the cost of incarcerating people, depending on the duration of the detention and the physical and mental needs of the immigrant, can be substantial.


While the reasons behind this policy are for the most part logical, there is one controversial element. Deportation will continue in cases that the immigrant “entered the country illegally or violated the conditions of entry in the past 3 years”. This directive effectively seeks to punish illegal immigrants that have only recently entered the US rather than punish illegal immigrants that have been in the US for over three years (who have broken the law for a longer period of time). To defend this policy, it is likely that the government would argue that illegal immigrants who have been in the US for a longer time have already settled there and deporting them would inflict a greater disturbance to their lives than those that have been in the US for less time.


In any case, some illegal immigrants should not be allowed to remain free in the US just because they managed to escape deportation for a longer period of time than other illegal immigrants. It is more logical that the guidelines regarding staying in the US to be decided by more just factors. In this way, illegal immigrants won’t be “safe” just because they managed to evade deportation for longer than three years and alternatively, others should not be deported just because they have violated the law more recently.


The new directive regarding the discretion with continuing proceedings is a step in the right direction because it allows the US to leave contributing and valued members of society in place, while reducing the expenses related to deportation. While part of this policy Is controversial, there is hope that attorneys handling these cases will exert wise judgement and implement these new guidelines in an effective and respectful way.


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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