Obama Administration to Exercise Prosecutorial Discretion in Compelling Cases

The Legal Action Committee reported that frustrated by Congress’ failure to enact comprehensive reform, immigration advocates have increasingly advocated for a robust prosecutorial discretion policy that encourages immigration officers to grant relief from deportation in compelling cases. In a letter in early April, the American Immigration Council and the American Immigration Lawyers Association (AILA) asked the Department of Homeland Security to offer written guidance setting forth detailed criteria on the favorable exercise of prosecutorial discretion. A subsequent legal memorandum released by the Immigration Council and co-signed by two general counsels of the former Immigration and Naturalization Service outlined specific steps the Administration could take to forestall removals in sympathetic cases. These increased calls for prosecutorial discretion come at a time when federal agents routinely commence removal proceedings against the same individuals whom the President has said should be eligible for an eventual legalization program. As detailed in a series of examples provided to Secretary Napolitano, ICE continues to pursue removal in cases crying out for a favorable exercise of prosecutorial discretion. In one case, ICE deported a woman from Guatemala with facial eligibility for a U visa on very same day an immigration judge entered a stay of removal. In another, ICE declined to join a request to administratively close proceedings to enable a trafficking victim to pursue an application for a T visa. And in another, ICE initiated removal proceedings against a longtime lawful permanent resident with three U.S. citizen children for inadvertently bouncing a check. While the President has rightfully criticized members of Congress who refuse to consider reforming our nation’s immigration laws, he has wrongfully rejected calls for increased use of prosecutorial discretion. Presidents cannot make new laws, but the executive branch has authority to determine how the current laws should be enforced.

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