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The Prosecutorial Discretion Circus

May 22, 2012

Prosecutorial Discretion Panels: The Immigration Circus Of Low Priority Cases

The immigration prosecutorial discretion circus is coming to a city near you. But it’s unclear which performers are arriving and what acts will be carried out.

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In late March, administration officials announced cases at some immigration courts would be temporarily suspended between April and July 2012.

Presumably, the closures extend efforts at prosecutorial discretion which began in Denver and Baltimore last fall.

The current schedule, already underway:

  • April 23 – May 4: Detroit, New Orleans, Orlando, and Seattle
  • May 7 – May 18: New York
  • June 4 – June 15: San Francisco
  • July 9 – June 20: Los Angeles

Assuming the Denver and Baltimore models are followed, prosecutorial discretion teams, like a traveling circus, will stop at various courts for two weeks.

They’ll set up working tables, organize legal notebooks, and pull active files to determine which matters qualify for a favorable grant of prosecution discretion.

If you’re an immigrant facing deportation, however, don’t get your hopes up too high for stunts of legal magic, courage, and daring.

The two-week reviews are limited in scope.

Administration officials say the goal is to review deportation cases of detained immigrants with an eye toward closing low priority matters.

According to ICE, the purpose is to focus resources on deporting immigrants with criminal records and those who previously ignored court orders to leave the country.

So what about the non-detained cases?

A Fork In The Road To Immigration Reform

Despite references to the Denver and Baltimore programs, the government has not confirmed the same processes are being followed for the current reviews.

Of course, ambiguity on immigration measures has been common under the Obama administration.

The Birth Of Intra-Agency Panel Reviews

In June 2011, ICE Director John Morton recommended the use of prosecutorial discretion to reduce overcrowding at immigration courts. He laid out 19 factors to be taken into consideration before placing immigrants in removal proceedings.

Two months later, the Obama administration announced plans to establish a joint Department of Justice and Department of Homeland Security task force.

The task force would begin a nationwide review of all 300,000 cases at immigration courts to identify low priority matters which could be closed. This would allow the government to focus its resources on higher priority national security, public safety, and border enforcement issues.

The idea languished until December 2011.

At that time, the formal reviews of pending cases finally began with the pilot projects at the Denver and Baltimore immigration courts.

There were no suggestions these reviews would be limited to detained cases.

Prosecutorial Discretion Policy Shift?

During the six-week Denver and Baltimore pilot projects, immigration judges were relegated to hearing detained cases.

At the same time, an intra-agency team of attorneys from ICE, USCIS, and CBP was assigned to review cases on the non-detained dockets.

This latter aspect appears missing from current prosecutorial discretion reviews.

Moreover, DHS has not stuck to its promise to promptly share data from the two pilot programs.

Originally, immigration officials said information gathered from Denver and Baltimore would be used to figure out the best practices to implement nationwide. To date, no findings have been published.

Nonetheless, the administration has now decided to venture into new territories.

And the scope of review seems changed.

These actions, based on my experiences as a Riverside immigration attorney, signify shifting prosecutorial discretion priorities.

The Denver and Baltimore Pilot Programs

According to a recent report by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, few immigration cases have been closed pursuant to an exercise of prosecutorial discretion.

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In Denver, as of September 2011, there were 7,579 non-detained cases pending at immigration court. Of this amount, the TRAC study found only 186 low priority cases had been closed by the end of March 2012. That’s 2.5%.

At the Baltimore immigration court, 5,256 cases were pending at the end of September 2011. 230 cases, or 4.4%, had been closed as of March.

TRAC’s analysis illustrates the gap between the rhetoric and reality of prosecutorial discretion.

More Immigration Cases, Less Review Time

Neither Denver nor Baltimore were among the busiest immigration courts in 2011.

Yet, the administration is now going into courts with more cases, and expects to complete its reviews in less time.

This seems counter-intuitive.

In other words, if it took six weeks to analyze the Baltimore and Denver files, how are the non-detained cases of larger courts going to be completed in two weeks?

The size of the non-detained caseloads for Los Angeles, New York, and San Francisco far exceeds those of the pilot project courts:


  • Los Angeles, California
  • New York, New York
  • San Francisco, California
  • Orlando, Florida
  • Detroit, Michigan
  • Seattle, Washington
  • New Orleans, Louisiana
26,483
22,229
11,249
4,520
4,154
3,836
1,785

Combined, the Orlando, Detroit, Seattle, and New Orleans courts have 14,295 cases.

Hence, the smallest two-week workload, 11,249 cases, belongs to San Francisco. To finish within the allotted ten working days, the government will need to review over 5,600 matters per week. This is larger than Baltimore’s entire caseload.

If a modest 15 minutes is spent on each file, by each member of a three-officer panel, it will require 4,200 hours per week to review all the files at the San Francisco immigration court.

Simply stated, the volume of work in San Francisco – much less the higher case counts at the other courts – cannot be completed in two-week time frames.

Unless the administration has excluded non-detained cases from its reviews.

In Search Of Presidential Leadership

As a deportation defense lawyer, I’ve wondered who controls the immigration agenda.

President Obama or ICE?

According to TRAC, 2,609 cases have been closed up to the end of March. The closures equaled 1.2% of the 219,554 cases reviewed.

As the administration scrambled to explain the results, most critics focused on the low 1.2% as a lack of political commitment to prosecutorial discretion.

They overlooked a more fundamental question.

Who reviewed the 219,554 cases?

prosecutorial-discretion-is-ice-serious-or-clowning-around

The answer became transparent once ICE offered to temporarily put 16,500 cases on hold.

That’s still a measly 7.5%.

How nice of ICE.

Last year, shortly after the task force was announced, I outlined a series of concerns about the administration’s prosecutorial discretion proposal:

  • What criteria would the government apply to determine low priority cases?
  • Would a cap be imposed on the number of favorable grants of prosecutorial discretion?
  • Is the administration willing to expend the resources to handle comprehensive file reviews by a intra-agency task force?

To the extent responses have been provided, they reflect an anti-immigrant bias.

I also questioned whether President Obama could be trusted to remove low priority cases from the immigration system when he boasts about record-breaking deportation totals.

The absence of political clarity harms immigrant families, many of which merit favorable grants of prosecutorial discretion.

In my view, it’s time for the president to stop clowning around with ICE.

It’s time for the president to prove he is the nation’s ringmaster on immigration policy.

By , Immigration Law, Policy, And Politics

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