Nearly 10% of Immigrant Removal Cases Being Closed Based on Prosecutorial Discretion

It’s no secret that the agency responsible for immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE), does not have the time or resources to deport or remove every undocumented or otherwise deportable immigrant who lives in the United States. So, it must set enforcement priorities — in other words, figure out who, or what type of foreign national, should be at the top of its list for arrest and removal. The rest, the agency routinely overlooks.

This policy leaves plenty of room for inconsistency and for concentration of agency resources on people who aren’t doing any harm in the U.S. — who may in fact have close family or other ties here. That’s why the policy was clarified and adjusted in a June 17, 2011 memo by ICE Director John Morton.

The Morton memo recommended that ICE agents exercise discretion by focusing mainly on cases where the undocumented or deportable immigrants have a criminal record or are otherwise threats to public safety — and to give a break to upstanding immigrants with strong or longstanding ties to the U.S., who contribute to their community.

In particular, the memo recommended giving consideration to people who arrived in the U.S. as children, are successfully pursuing advanced degrees or have graduated from U.S. high schools, have served in the U.S. military, whose removal from the U.S. would split up a family, and so on. By extension, the memo offered a possible way for gay and lesbian partners of U.S. citizens, who are not eligible for a green card based on marriage, to avoid deportation.

What does this new policy mean, in practical terms? It’s not an amnesty, nor a way for undocumented immigrants to apply for a green card. What it does mean is that not only should ICE agents stop arresting people who are low on the priority list, but the Department of Homeland Security (DHS) will close active cases in the immigration court system that fit the new guidelines. The cases will be put on pending, inactive status — essentially placing the person in limbo.

Implementation of this policy has itself been a bit inconsistent. However, reviews of immigration court cases under the new policy has begun. And according to a recent report by Ben Winograd, called “Crunching — and Clarifying — the Numbers on Prosecutorial Discretion,” 13,000 of the 165,000 cases reviewed so far were found eligible for a favorable exercise of prosecutorial discretion– though proceedings have not yet been suspended in all these cases. (The need for background checks may be creating a holdup.)

Clearly, this area of  immigration policy is still developing, and we are likely to see more adjustments — and possibly opportunities — as it does so.