New report highlights the importance of discretion in deportation cases

A fact that is little-known outside of immigration advocacy circles is that the current administration has overseen more deportations in less than four years than the previous president’s administration did in eight. There is a number of reasons for this difference, including improved technology for detecting and apprehending border crossers as well as the expansion of programs such as Secure Communities which were started under the previous president and continued/expanded by this president. Total deportations under this administration have already topped one million, even as attempts to enter without inspection (cross the border illegally) have fallen in the wake of the economic downturn.

Another spike has been the number of deportation processes initiated in the federal immigration courts. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University collates data on the nation’s deportation processes. As of the end of March 2012, there are more than 305,000 pending immigration court cases in the United States, and the average number of days to complete a case is 685. Yes, it takes nearly two years to complete each case, meaning that families face both uncertainty and continued legal fees for months upon months while they process and fight out their cases in immigration court. In these data, 61 percent of all current removal proceedings (the official term) are for allegations of unlawful entry to the United States; less than 17 percent of these cases targeted respondents accused of serious offenses such as crimes or national security concerns. And because the number of immigration judges has not grown as rapidly as enforcement has increased, courts from coast to coast are becoming clogged up with respondents.

A savvy Obama apologist might argue that the president has intentionally hiked up the number of deportations and permitted the clogging of the immigration court system in order to demonstrate the need for comprehensive solutions to our broken immigration system. It is not obvious that the president or his staff would agree with this characterization, but intentionally or not these policies have shown in no uncertain terms that the “round ‘em up and deport ‘em” approach to recalibrating our immigration system is short-sighted or even foolish.

A recent report out by the American Immigration Council Immigration Policy Center argues that this approach is not only a waste of resources, it also denies those subject to these proceedings sufficient due-process protections. Current Department of Homeland Security practice is such that frequently a handful of different government attorneys (representing Immigration and Customs Enforcement and seeking to remove the respondents) will manage the same case in a rotation depending on whose turn it is. This is done instead of locking ICE attorneys to individual cases, and the predictable results are delays in processing cases and inconsistency from hearing-to-hearing in each ICE attorney’s willingness to cooperate or show discretion toward the same respondent.

As the Immigration Policy Center points out, respondents in removal proceedings are allowed to have an attorney to represent them but they are not entitled to one. As a result, nearly half of all respondents in removal proceedings last year appeared without representation. Immigration attorneys frequently charge thousands of dollars to take on a removal case, and some families simply do not have the money to hire these services however skilled they may be. The alternative is to work with legal services organizations that provide low-cost or no-charge representation, but these organizations have been overwhelmed by the increase in volume. The respondents who fall through the cracks are therefore some of those in greatest need of help, and there is no equivalent to a public defender’s office for immigration cases.

In this context, the Immigration Policy Center points to the concept of prosecutorial discretion as a possible release valve for these pressures that so far has not been utilized. The idea of prosecutorial discretion has gained appeal as a result of a series of memos from high-ranking DHS officials including DHS Secretary Janet Napolitano. The idea is that, faced with record levels of enforcement and deportation, the immigration-court system (and the enforcement agencies that fuel it) should exercise discretion in bringing removal proceedings against individuals who have compelling cases. Individuals with mostly clean criminal records, strong community ties to the United States, who have close U.S. citizen family members who live in the country, and who have been in the country for many years should be given special consideration. This might mean administrative closure of their cases (both sides agreeing to an indefinite “time-out” in removal proceedings) or even avoiding the issuance of a Notice to Appear (NTA) in immigration court in the first place.

Immigration advocates cheered these proposals when they were first brought up, but the reality of prosecutorial discretion has been more complicated. The policy — spelled out clearly and generously in federal memos and pseudo-policy — has been enforced at the whims of local ICE offices according to the attitudes and preferences of district ICE attorneys and individual officers. Additionally, the Immigration Policy Center report points out that there is no systematic way to inform unrepresented respondents that they may request prosecutorial discretion, so many of the unrepresented are completely passed over for this form of relief while those with attorneys or representatives fight tooth and nail (often in vain) for a second look.

The Immigration Policy Center report is worth a read, and it makes a compelling case for the importance of better availability of resources for unrepresented respondents in removal proceedings. As enforcement continues to expand and more and more families are swept up into the immigration court system, the immigration system must do a better job of prioritizing cases so that the real “bad guys” are aggressively targeted for removal while law-abiding immigrant families are given a reprieve or at least get a fighting chance at closing their cases.

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Filed under National News, Undocumented Immigrants

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