Understanding Prosecutorial Discretion
In the summer of last year, and due to the severe backlog experienced by immigration courts, Immigration and Customs Enforcement (ICE) issued a directive to review more than 300,000 deportation cases involving people who are considered “low priority.” The directive gives the courts permission to exercise prosecutorial discretion in cases where people have no criminal background and at the same time maintain deep ties to the United States in order to get their cases administratively closed.
When this directive became public, it was welcome as an effort to prioritize serious criminals for deportation and allow at least a small number of undocumented immigrants who are not criminals and pose no danger to our communities to go back to their families and, as much as possible, to a normal life.
On the other hand, it is not clear exactly when and how the process will be implemented, even though the directive was issued in June of 2011. Moreover, prosecutorial discretion is meant to benefit a small number of undocumented immigrants, and not all of the 10 million who are currently without legal status.
They would have their cases administratively closed by the courts, but that does not mean an “amnesty” of any kind, nor legalization. Individuals who benefit from this policy will not be able to adjust status and get a green card, and they would not necessarily be given a work authorization permit.
Although there is some data from the Department of Homeland Security about pilot programs in two U.S. cities that suggest that 14.27% of all cases under review will be administratively closed, the lack of clear guidelines and the inconsistent application of the policy make immigration advocates only guardedly optimistic about long-term positive results.
Given the fact that prosecutorial discretion is exercised exclusively by the courts and federal prosecutors, there is really no procedure for immigration lawyers or BIA accredited representatives to follow in filing for this benefit on behalf of anyone. There are actually no forms or paperwork to be filled out either. Undocumented immigrants who are not currently under deportation orders should not turn themselves in to immigration authorities for the sake of receiving this benefit, as there is no guarantee that that they will get their cases closed.
Whatever good intentions undergird these federal efforts, it is clear that the process is not evenly implemented and there is little that anyone can do proactively in order to file for this benefit, other than writing a letter to ICE to ask for prosecutorial discretion, listing all the reasons why one qualifies for it and providing supporting documentation to that effect. For more detailed information on this letter, download Self-Help Guide for a Prosecutorial Discretion Request [PDF] (from www.aclu-sc.org).
There are efforts by defense committees currently taking shape in different cities in the U.S. to mobilize people of faith and connect them to ICE regional directors in order to start a dialogue that will hopefully lead to the clear implementation of this policy. People of faith must pray for clear guidelines and an expedient and effective process that allows prosecutorial discretion to become a real chance for undocumented immigrants with no criminal background to be freed from ICE detention centers and return to their communities and families. But without a chance for that freedom to turn into some kind of path that leads to residency and a work authorization card, prosecutorial discretion may be too small a hope for a small segment of our undocumented population.