Is ICE trying to implement prosecutorial discretion which I thought had always been exercised and a prerogative or is this a “show and tell” display to meet a mandate? Specifically, ICE’s efforts have been focused on a pilot program in two cities for illegal immigrants whose cases fall under the jurisdiction of the Baltimore Immigration Court and the Denver Immigration Court. Of the 12,000 cases reviewed thus far for those courts, ICE has recommended that 12% of them be administratively closed by the Immigration Courts. The New York Times reported that as prosecutorial discretion is implemented nationwide, an estimated 39,000 cases could be administratively closed. With the long wait times in several Immigration Courts, administratively closing these cases will certainly ease the backlog. Or will it? Since cases closed may be those already ready to go with positive results and now they may just be put on a back burner until 2014.
Although this is a step in the right direction, many questions remain regarding prosecutorial discretion. Specifically, what does “administratively closed” mean? These individuals who benefit from prosecutorial discretion may remain in a status of limbo. Their unlawful presence in the United States will simply continue and their ability to work in this country will be severely impacted. ICE has already determined that these individuals are of no security threat by instituting background checks. It’s time for policy makers to determine what happens next for those that benefit from prosecutorial discretion. For the additional 3 or 4 years of waiting shouldn’t they receive the ability to support themselves while here awaiting another turn on the roundabout of delays.
Additionally, questions still remain for immigration lawyers and how they can use prosecutorial discretion. Currently, ICE prosecutors are individually reviewing the files of illegal immigrants. ICE prosecutors can then file a motion for prosecutorial discretion which the illegal alien can then agree to or reject. However, illegal aliens should be able to request prosecutorial discretion as well. With the 300,000 cases ICE has to review, it’s likely that there are thousands that qualify for prosecutorial discretion under the Morton Memo that may not have it appropriately applied. Given the large element of discretion, illegal immigrants should be able to formally request prosecutorial discretion.
Prosecutorial Discretion is a long over due decision by the Department of Homeland Security. However, for this to have a lasting impact, the ambiguities within it must be resolved. Making a case “administratively closed” doesn’t resolve the true problems that these individuals are facing.