Attorney Representation is Important for Prosecutorial Discretion

Attorney Representation is Important for Prosecutorial Discretion

The American Immigration Council reported that after ICE Director John Morton issued a memo last June outlining how and when ICE officials should exercise prosecutorial discretion in immigration cases, many were optimistic that the memo’s implementation would relieve backlogs and help the agency focus on higher priority immigration cases. Months later, however, folks are finding that one large group of people has limited access to this review process—immigrants without legal representation. In fact, nearly half of all immigrants in removal proceedings  appeared without legal representation in 2011, also known as “pro se.” While immigration attorneys often explain the effect of these prosecutorial discretion policies to their clients, pro se immigrants may be unaware that new policies are even in effect.

Unlike immigrants who have legal representation, pro se immigrants do not have access to information specifically directed at them explaining the exercise of prosecutorial discretion, how to obtain it, or what it means. This compounds the already serious problem that most pro se immigrants do not have access to information about what relief might be available to them. Moreover, whether or not they are aware of possible options for relief, they may be unaware of the implications of either accepting or foregoing an offer of prosecutorial discretion from ICE.

Underlying all of these deficiencies is a fundamental inequity—immigrants who cannot hire or find scarce pro bono attorneys are not entitled to government-provided representation in a deportation process that has devastating consequences, including separation from family for decades or forever.

To prevent pro se immigrants from falling through the cracks, immigration authorities can take a number of steps to ensure they understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it. First, ICE should advise pro se respondents prior to reviewing their files and explain how to submit documentation for agency officials to consider. Second, if ICE declines to offer a favorable exercise of discretion, agency officials should inform pro se respondents how they can “appeal” the decision to higher agency officials. Third, when ICE offers a favorable exercise of discretion, the agency should provide information explaining the consequences of accepting such an offer. And finally, prior to approving a favorable exercise of discretion, Immigration Judges should affirmatively confirm that pro se immigrants understand these consequences.

By adopting these recommendations, immigration officials can help alleviate one of the most fundamental inequities of the removal process: that the government does not provide attorneys to immigrants who cannot afford one.