Concerns Abound With Immigration Reform and Prosecutorial Discretion

The latest band-aid applied to immigration reform is prosecutorial discretion. What does that mean?

Despite presidential promises that immigration reform would be passed and things would change, what has happened instead is that the borders are even more locked down with stricter enforcement measures being put into place, and more than one million people were deported over the last three years. You could call this a classic case of saying one thing and doing another.

So what is really going on? In a word, politics is what is going on. The current U.S. Congress is primarily Republican, and they are dead set against immigration amnesty, one of the main reasons the DREAM Act never saw the light of day no matter what the House said. The composition of the administration is such that Obama is having a tough time finding someone to move his immigration reforms ahead.

Failing to find enough favor to move immigration reform forward the way it was envisioned, Obama has announced something he refers to as prosecutorial discretion. What? Ideally, this newer policy gives law enforcement the authority to decide to prosecute or not prosecute (and to what extent) the law in any given case on a case by case basis. Put another way, ICE or prosecutors can use good judgment in deciding whether they want to file deportation cases, permit a deferred action or go ahead and enforce a deportation order.

In this instance, apparently the discretion may be employed based on the guidelines spelled out in a policy memo. That is hardly a comforting thought either, as one person’s idea of discretion is rarely the same as another’s and usually nowhere near what the official line is supposed to be.

Despite the nod to go ahead and use discretion, deportations are not slowing down. A mélange of all types of illegal immigrants are being booted back across the border without regard to the families left behind or taking into account that those numbers also include people with no criminal history whatsoever.

Just what are the guidelines where discretion may come into play? The memo says low priority deportees can get their cases closed administratively and granted employment authorizations. High priority cases or criminals are to be deported. This sounded good to thousands of illegal immigrants in the midst of deportation hearings, as this choice to utilize discretion may mean their case would be dismissed. But there is no such luck. Instead, most of the requests for prosecutorial discretion have been flatly turned down. In fact, the review of 300,000 removal cases in various pilot programs has not even been started. And there are some that call this progress?

While this nod to making a difference on the grassroots level is nice, and has the potential to deal with illegals that are no threat to U.S. society with a measure of common sense, there seems to be difficulty in actually implementing it. When is the Administration going to truly do something about immigration reform, instead of nitpicking at it?

Sally Odell – Rifkin & Fox-Isicoff, PA is an immigration lawyer in Miami with immigration law offices in Orlando and Miami, Florida. To learn more, visit

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