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Immigration Panel Review, Low Priority Cases, And Prosecutorial Discretion

November 6, 2011

Obama’s Deportation Review Panel: Legal Substance Or Political Stunt?

When the idea of a deportation review panel was initially floated, I was skeptical it would get off the ground.

Now, given recent information shared by Janet Napolitano, DHS Secretary, in testimony before Congress, I think something resembling review panels will be implemented.

Otherwise, Obama risks further alienating immigration reform advocates at a time when his need for their electoral support is growing.

However, as a Riverside immigration attorney, I still doubt the panel will live up to its advance billing.

What Is The Purpose Of The Immigration Panels?

In July, ICE Director John Morton issued a memorandum discussing the need to exercise prosecutorial discretion in certain situations. He outlined 19 factors for ICE agents to weigh before deciding to seek the immediate deportation of immigrants, many via the immigration court system.

The scope of the memo went beyond ICE. It sparked a public discussion of an overcrowded immigration court system.

Two months later, the Obama administration announced plans to establish a joint Department of Homeland Security (DHS) and Department of Justice (DOJ) working group to address the issue.

According to the press statement, the group’s formation was prompted by the need to ensure government resources are focused on the highest immigration enforcement activities – national security, public safety, and border security – while preserving the integrity of the country’s immigration system.

The announcement was applauded by immigration reform advocates throughout the nation. Meanwhile, deportation defense lawyers, government attorneys, and immigration judges grappled with its meaning. Due to the confusion, some immigrant courts continued case after case to new dates, sometimes six months or longer into the future.

On October 19, 2011, testifying before Congress, Napolitano revealed a systematic review of pending immigration court deportation cases would begin in two or three weeks. She explained the purpose of the review panel would be to separate high priority deportation cases involving criminals from low priority cases to be dropped.

Obstacles Facing The Review Panel

It remains to be seen whether the review panel will be as effective as claimed. Many obstacles stand in the way.

What Are Low Priority Deportation Cases?

There are no clear parameters defining what constitutes a low priority case. Some commentators believe low priority cases will be defined according to Morton’s June 17, 2011 memo.

Even if the 19 points listed by Morton are the guide, how will they be utilized by DHS and DOJ representatives?

The Morton memo, after all, was addressed to ICE agents – and there is a potentially vast difference between how law enforcement officers and DOJ representatives will view which cases should be removed from the immigration system.

Will one agency have veto rights over the other?

In addition, the administration has given confusing signals on what it considers a low priority case.

Publicly, the administration has commonly stated its primary policy is to arrest, detain, and remove serious criminals. Yet, as discussed in The Politics of Deportations: Immigrants As Election Fodder, nearly 83% of its detainees have not been serious criminal offenders.

How Will The Totality Of The Circumstances Test Be Applied?

Pending immigration court cases will be reviewed under a totality of the circumstances test. Again, it’s presumed the 19 factors outlined in the Morton memo will be the key.

Nonetheless, it’s not clear how the various circumstances will be weighed from case-to-case.

For instance, the first factor listed in Morton’s memo pertains to an immigrant’s “length of presence in the United States, with particular consideration given to presence while in lawful status.”

Does this mean a 20-year lawful permanent resident, who has a few minor convictions, will be given higher consideration than an immigrant who entered lawfully but has lived here as an overstay 20 years without any criminal blemishes?

Morton’s memo also mentions the “circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child.”

This provision is clearly intended to benefit potential DREAM Act beneficiaries. A child who enters the country unlawfully at an early age is deemed less culpable than the parent of that child who may have entered the same day without permission.

Yet, how do these situations weigh vis-à-vis immigrants who entered with a visa but stayed past their departure date?

How Many Deportation Cases Will Be Excused?

Once the panel’s parameters are determined, will limits be imposed on how many cases can be removed from the active litigation track?

Currently, there are about 300,000 active cases in the immigration court system. Assuming a modest 10% are meritorious, will the panel be allowed to recommend closure or termination of all 30,000 cases?

Or will a cap be imposed?

How Long Will It Take For 300,000 Cases To Be Reviewed?

At 15 minutes per file, it will take 75,000 hours to review 300,000 files. Broken down further, that’s 1,875 weeks.

Some cases may be reviewable in 15 minutes. Most are not.

If only 15 minutes are allotted per file, most cases will be reviewed summarily, not thoroughly.

These figures are for only one officer reviewing each file.

If each file is only reviewed by one person, where are the checks and balances?

A single-person review would be strikingly similar to the Bush administration’s streamlining process for BIA appeals. Most likely, so would the results.

How Many DHS and DOJ officers Will Be Assigned Per File?

A panel review, by definition, implies more than one person looking at each file.

A modest panel would consist of three government employees reviewing each file. This would equal 5,625 weeks of review time for all 300,000 files.

These figures are for existing immigration court files only.

It does not include the time required to review new files entering the system in 2012 and beyond.

What Are The Chances For Success By Immigrants Without Attorneys?

Officers assigned to reviewing immigration files will need some type of checklist.

Will this checklist be provided to the public?

Even with a checklist, most immigrants, handling their cases without an attorney, will not understand how to present evidence supporting the Morton factors.

As a result, in pro per cases, the panel will only know what exists in immigration court and ICE files. Usually, these files will not adequately present the equities favoring a pro per request for deferred prosecution.

To the extent panel review is truncated, the need for attorney representation increases.

Yet, since 57% of deportation cases involve a pro per immigrant, the majority of case reviews will be based on limited information.

How Long Will Immigration Courts Wait?

A lot of hours will be required to efficiently process review by the DHS – DOJ panel.

The less resources allocated to the panel, the longer it will take for the review to take place.

Will immigration judges withhold cases long enough for panel reviews to be completed?

If immigration judges have to wait several months to hear back from the review panel, this could increase, not reduce, the immigration court’s already out-of-control backlog.

Will There Be A Procedure For Opt-Outs?

At times, an immigrant and his representative may want to opt-out of the system.

For instance, an asylum-seeker may want to proceed with his case in immigration court.

If his asylum application has already been denied by an immigration officer, there is no incentive to seek panel review, which cannot grant him permanent resident status. This leaves him in limbo.

His immigration status depends on a decision by the immigration judge. Will he be able to opt-out of what might become a lengthy review panel process?

What About The Other Courts?

The adminstration has noted the panel will review not only cases pending at immigration court, but also those at the Board of Immigration Appeals and the federal courts of appeal.

To do so means adding an unknown number of immigration cases to the 300,000 pending at the immigration courts.

Given the amount of resources necessary just to review cases at immigration court, will such expanded review be feasible?

Is The Panel More Than Just Another Publicity Stunt?

Since the panel is an Obama creation, it is likely to end if he loses the election.

It may not even survive 2011.

After all, based on the past 34 months, Obama has not shown the commitment to fight for immigration reform measures due to fears over an anti-reform backlash, amidst backdoor amnesty criticisms.

At first glance, it seemed the review panel proposal was geared to help certain classes of immigrants like DREAM Act beneficiaries, who have been openly visible in their opposition to Obama’s empty promises.

Yet, individuals within these immigrant classes are still being detained in record numbers.

In other words, can the administration be truly committed to removing low priority cases from the immigration system at the same time as it proudly boasts about its record breaking year for deportations?

By

, Immigration Law, Policy, And Politics

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