Prosecutorial discretion in immigration court still should be going strong

Sunday, April 12th, 2015
By: Jonathan MontagJ.D.

On August 6, 2015, Brian M. O’Leary, the Chief Immigration Judge, the head of the immigration judges,  and Riah Ramlogan, the Acting Principal legal Advisor for ICE, ICE’s head of its immigration court prosecutors, both issued memoranda regarding prosecutorial discretion, here and here. While it may be coincidental, two memoranda on the same day from different agencies at different federal departments (ICE is part of the Department of Homeland Security and the immigration courts are part of the Department of Justice) certainly send a strong message – prosecutorial discretion in the immigration courts is alive and well. Ms. Ramlogan’s memo instructed her attorneys to have evaluated before all hearing  every case on the docket for the feasibility of exercising prosecutorial discretion in the case. Mr. O’Leary’s memo instructed immigration judges to ask about the feasibility of exercising prosecutorial discretion in each case on the docket. Previously, immigration judges were giving aliens in the court system time to seek prosecutorial discretion and ICE attorneys were evaluating cases usually only after pitches to exercise the discretion were made to them.

Prosecutorial discretion policies in the immigration court context were implemented in 2011 and strengthened in memoranda such as this one from the director of ICE on November 20, 2014, when President Obama announced initiatives to defer action to remove law-abiding undocumented aliens with permanent resident or U.S. citizen children (DAPA) and more children than were eligible for an earlier program initiated in 2012, who entered the United States before age 16 (DAPA).

The DAPA and new DACA programs have not yet begun because of pending federal litigation which I have discussed here. When a federal district court judge enjoined the implementation of DAPA and the new DACA, stories began circulating that ICE was no longer honoring the existing prosecutorial discretion programs. The twin April 6 memos make clear that the prosecutorial discretion programs in the immigration courts are still in force and in fact the implementation must be more thorough.

While to some the program seems only like a way to grant amnesty to illegals and in a way it certainly is, it is also necessary. As Mr. O’Leary writes in his memo, there are 429,000 cases pending in immigration courts. More are pending on appeal. The court system cannot deal with this many cases. There are three ways to solve the problem: 1) Speed up the processing of each case; 2) increasing the number of prosecutors and immigration judge; or 3). Reducing the number of people subjected to removal proceedings.

During the George H. W. Bush years, the solution was #1, speeding up the processing of each case. Immigration judges were exhorted to meet completion deadlines and quotas and the BIA began a process of summary adjudication of appeals. The result was not a reduction of the backlogs and led to due process challenges to unfair process. It turned out that the problem was not lollygagging immigration judges, but a system that could not move faster while doling out justice fairly. Solution #2 means Congress must allocate more money to the immigration court system, but Congress won’t do that. Thus the only answer is 3) reducing the number of people subjected to removal proceedings by not proceeding against low priority aliens.

Just as examples of the problem are cases that have crossed my desk this week. An alien in removal proceedings in San Francisco was recently scheduled for a hearing in his case in February 2018, more than three years from now. If his case does not get completed on that date, God knows when it will be continued to. An alien in San Diego who came to the country fleeing persecution in September 2014, will not be able to file his asylum application until November 2015, as his case has been postponed twice because the immigration judge was detailed for more important cases in other cities. God only knows when his actual hearing will be. A system that countenances such delays is not tenable. Doing nothing will mean actual bad guys will get to remain in the United States for years and people, like asylum seekers, will wait years to finally remove the specter of being returned to bad fates in homelands they have fled. Triage is necessary and that is what the prosecutorial discretion program provides. Deciding immigration cases should be in the hands of men and women. Scheduling should not be left to God. Posted April 12, 2015.


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