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The Myth of Prosecutorial Discretion

We currently have over 11 million people living in the shadows in the United States. These people live a life of uncertainty, where they don't have many rights and what rights they do have, they hesitate to defend. Driving a car is against the law for them. They fear calling the police, when they are victims of crimes. Sometimes being a victim and reporting it carries the penalty of removal from the community they love and that loves them.

These are our neighbors. They shop in the same stores where we shop and attend the same schools our children do. They are our co-workers. They pay taxes and sometimes serve in the armed forces defending our country.

Our buildings and roads are built by them. They clean our homes and tend to our gardens. In many cases, they work 12 hours or more daily, for less than minimum wage. They are denied the fundamental right to a college education. Yet, they do not complain. Demanding that they be treated with the same dignity and respect as the rest of us, carries the possible penalty of removal. In many cases parents are torn away from their children.

You may be asking yourself, who would choose to live like this? What could they possibly have done to warrant living a life in the shadows, where at any moment they may be discovered and imprisoned?

In a great majority of cases, the only thing these families and individuals are guilty of is the crime of dareing to dream of a future where their children are fed and have a roof over their heads. They dream of a life free of poverty and socioeconomic turmoil. They aspire to a college eduction and being productive in their new home.

There are over 11 million undocumented immigrants in the United States, who have left their countries and braved sometimes hazardeous journies, in order to have a chance at a better life for themselves and their families. Some have left extreme poverty and others have come here fleeing wars or other socioeconomic hardships. In all, the vast majority of these individuals or families are living in the shadows, out of fear that they will be repatriated back to their countries of origin.

Many have tried to go through official channels to come here. But, the waiting list is long and many cannot wait 10+ years, in order to escape economic hardship or violence in their home countries. In the meantime, they have come here and put down roots. These new neighbors in our communities have bought homes, openned local businesses, pay taxes, and are raising children born here. You cannot look at someone and divine their immigration status.

In the last 3 years, through programs like 287(g) and Secure Communities our government has deported record numbers of people (according to some estimates, more than the last 2 administrations combined). Last year, we reached the 1 million mark.

In an attempt at a solution, last year, the Obama administration issued a memorandum announcing a new process whereby anyone who came to the US as a child, has children who are US citizens, and/or who has no serious criminal background (not a violent offender or a threat to national security) would have their deportation cases reviewed and administratively closed. Following the Obama administration's announcement, ICE Dierector John Morton issued another memo echoing this commitment to a concentration on violent offenders and other serious criminals. These memos came as a response to a push by immigrant advocate's around the country who have been lobbying for our government to find a positive solution to the debate over what to do with the 11 million unauthorized immigrants now residing in our country.

These memos give local ICE agents prosecutorial discretion in deciding whether to process an immigration case or not. In other words, it leaves it up to the local agent to decide whether to continue with a case or administratively close it. In many cases, local ICE agents have pushed harder for deportations than before. The memo also does not ensure that immigrants will not be processed again in the future. In the end, the cases are only closed until the next time.

This approach falls short of finding a true lasting solution. Administrative closure is only a temporary solution. It does not permanentely close  a case. All adminstrative closure does is remove the case from the current judge's docket. The case can be reopenned at anytime in the future. Furthermore, according to the Immigration policy center "Immigrants whose cases are administratively closed do not receive any lawful immigration status, and DHS has refused to grant employment authorization documents (EADs) to such immigrants unless they would otherwise be eligible". In essense, these immigrants are placed in limbo with no opportunity to obtain employment authorization or a chance to fix their immigrant status."

As a result, many immigrants turn down administrative closures and instead choose to take their chances with the court process. Department of Homeland Security (DHS) sources have said that "of the 3,998 immigrants who have declined offers of administrative closure, more than 3,000 may be eligible for “cancellation of removal,” a form of relief that provides lawful permanent resident (LPR) status—i.e. a 'green card."

According to a press release issued by the American Immigration Lawyers Association (AILA), "DHS has reviewed over 288,000 cases, a paltry 1.5 percent of the cases were actually granted discretion, and even those were granted only a temporary reprieve, keeping their lives completely in limbo. That's a very low rate -far less than the percentage that succeed in obtaining relief in court".

In the end, prosecutorial discression falls short of its intended purpose. It does not lead to any permanent solution (path to legal status). Instead people with no criminal records who fit the profile of those that should be allowed to stay are left in limbo, waiting for the next time that they are taken into ICE custody; only to have local ICE officials push harder for removal. Administrative closure turns out to not be the best option for those that may through the court process obtain some other form of relief that may lead to legal status.

What we need is a push for true, comprehensive immigration reform that will lead to a path for legalization of the more than 11 million hardworking families. In the meantime, we as a people can push for more relief options for our immigrant friends, family members, students, and neighbors. One option is for our president to sign an executive order for relief.

What do you think?