Prosecutors use greater discretion in immigration courts

A recent report from Syracuse University’s Transactional Records Access Clearinghouse shows that federal immigration lawyers are using increasing discretion when it comes to prosecuting undocumented immigrants. The report covered 83 immigration courts throughout the country, and found that more than 20 percent of case closures were a result of prosecutorial discretion (where prosecutors decide not to proceed with deportation due to a variety of reasons).

Increasingly, federal immigration prosecutors are considering factors like an immigrant’s family situation (especially whether they care for children), the length of time spent living in the U.S., the age at which an undocumented immigrant came to the country, and whether there are family ties to the military when deciding whether to go forward with deportation proceedings.

Change in prosecutorial policy
This expanded use of prosecutorial discretion came after John Morton, formerly the director of U.S. Immigration and Customs Enforcement, laid out a new strategy in an October 2011 memo. Part of the reason for this new approach is an effort to clear backlogs in the nation’s immigration courts. But it is also intended as a more humane approach to immigration enforcement by placing more of an emphasis on undocumented immigrants who have committed crimes or who don’t have ties to their communities.

The new policy is partially responsible for a 10 percent decrease in deportations between fiscal year 2011 and fiscal year 2012. That reduction has served to placate  immigration reform advocates to a small extent, but there is still plenty to do on the reform front. And these measures will likely only serve to inflame the debate, as anti-immigration groups have taken issue with this more liberal approach to enforcement.

There is also some concern that the greater use of prosecutorial discretion is as much a result of an overwhelming caseload as any other factor.

“A high PD [prosecutorial discretion] court closure rate may be a sign that inadequate review of cases is taking place before officials file an action in court seeking a removal order,” the Syracuse researchers wrote in their report.