Prosecutorial discretion — a catalyst for immigration reform

As an immigration attorney of 16 years, I’ve seen firsthand the tragic impact of the inaction in the House of Representatives. And I have to ask myself, do families need to continue to be separated until Congress acts on immigration reform?

No, they don’t — if our immigration enforcement officials were to actually use prosecutorial discretion on an expanded basis, that is, as they were encouraged to do by their leadership more than two years ago


Let me give you the back story. In June of 2011, John Morton, director of Immigration and Customs Enforcement (ICE), issued memoranda encouraging the expanded use of prosecutorial discretion by ICE officers, agents and attorneys in all phases of civil immigration enforcement. The first outlined how ICE employees should approach a wide range of opportunities to apply prosecutorial discretion in line with ICE enforcement priorities; and the second described specific protections for certain crime victims, witnesses and plaintiffs.

Common sense prevailed in these memoranda, which emphasized that prosecutorial discretion decisions should be consistent with ICE enforcement priorities. Most importantly, they reframed the standard for prosecutorial discretion decisions to whether the case met the agency’s civil immigration enforcement priorities, which are: national security, border security, public safety and the integrity of the immigration system.

The hope and expectation was that these memoranda would reduce the tragic impact of our current broken immigration system on families: mothers, fathers and children. With an emphasis on family relationships and ties to the community and a re-focus on removing those who pose national security risks — serious felons, repeat offenders, those with lengthy criminal records and “egregious” immigration violators — the implementation of prosecutorial discretion promised hope as a way to ease the fear and suffering of many families.

More than two years later, however, the realities of prosecutorial discretion leave much to be desired.

Case-by-case data from ICE gathered by TRAC Immigration show that no more than 14 percent of the “detainers” issued by the government in 2012 and the first four months of 2013 met the agency’s stated goal of targeting individuals who pose a serious threat to public safety or national security.

In fact, roughly half of the individuals subject to an ICE detainer had no record of a criminal conviction — not even a minor traffic violation. Furthermore, only a small proportion of the filings in the immigration courts seeking to deport non-citizens have been based on alleged criminal activity, with the vast majority being predicated on a charge for entry without inspection.

In June of 2012, President Obama sent shockwaves through the nation when he directed the Department of Homeland Security to implement Deferred Action for Childhood Arrivals (DACA). The agency worked expeditiously to draft and issue FAQs providing more details about the eligibility criteria and request process for the DACA, as well as a form and instructions. The DACA policy did not supersede ICE’s previously issued prosecutorial discretion guidance outlined in the 2011 Morton memorandum, and anyone in removal proceedings who did not meet the eligibility criteria under the DACA would still be eligible for prosecutorial discretion based on the prior guidance.

The reality of the DACA is that thousands of aspiring young American citizens proudly raised their hands and came forth saying: “Here I am!” The Dreamers, these courageous and talented young men and women, came out of the shadows seeking a deeper integration into American society. But they are not just advocating for themselves — they also ask for that same dream to become a reality for their parents, many of whom remain hidden in the dark corners of our immigration system.

Last week the U.S. Citizenship & Immigration Services issued a memorandum to ensure the consistent adjudication of parole requests for spouses, children and parents of military personnel. The memorandum noted that “our veterans, who have served and sacrificed for our nation, can face stress and anxiety because of the immigration status of their family members in the United States.”

The memorandum goes on to set forth the guidelines under which the “discretionary” and “sparingly used” process of Parole in Place is to be exercised. The enormous benefit of this process is that it would potentially allow many families of military personnel to not only remain together but to seek further adjustment of status provided (as is the case for most immigrants currently in our country) — that the only inadmissibility issue is their undocumented entry.

The DACA and Parole in Place are two forms of existing discretionary tools available. So why are so many families forced to live in fear until Congress acts on sensible, commonsense, comprehensive immigration reform?

Prosecutorial discretion exists whenever a government official is empowered to decide whether to enforce a law against someone. Consequently, prosecutorial discretion is inherent in our system of laws, regardless of the substantive issue. In the immigration context, immigration agencies and officials have a long and rich history of using prosecutorial discretion to resolve cases involving significant equities, policy calls or practical resource issues. In 2000, then-INS Commissioner Doris Meissner issued guidance clearly articulating the role of prosecutorial discretion in immigration enforcement. That guidance remains in operation and has served as the touchstone for the subsequent memoranda on exercising discretion.

As our congressional members battle over ideologies and our Dreamers and advocates debate the means to immigration reform, action is needed. A call for humane, proper, smart and effective prosecutorial discretion could ease the fears of husbands, wives, daughters and sons. It should begin at once, and would encourage the healing of our politically divided nation. It’s a stopgap measure, but a step forward nonetheless — one that could perhaps provide a catalyst for immigration reform to become the much-needed Christmas miracle.

Let’s remind our leaders that immigration reform is not about politics, votes, or reelection. It is about the human spirit of those willing to risk it all for a better life, the courage of young Dreamers fighting to belong to the one nation they call home and, most importantly, the moral principles and values on which our country was built.

Action is needed. We have a crisis in which the mess of our dysfunctional immigration system is separating families. This has to stop. Until immigration reform becomes a reality, discretion must be widely and humanely exercised. 


Padilla is secretary of the American Immigration Lawyers Association.