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Prosecutorial Discretion in Immigration Proceedings: Is it Legal?

One of the primary goals of the Obama administration’s new immigration reform policy is to increase the number of “high priority” deportations relative to the general illegal alien population. “High priority” individuals include felons, those who have repeatedly violated immigration laws, those who pose a risk to national security, and those who are members of gangs and other illegal groups. The administration has generally succeeded in its goal: the number of aliens with criminal records deported increased by more than 70% from 2008 to 2010. In order to achieve results under this plan, Immigration and Customs Enforcement (ICE) advocates a policy of “prosecutorial discretion,” which allows its attorneys to choose whether to apply the full extent of the law in cases involving illegal aliens.

In an internal memorandum, ICE director John Morton explained that ICE attorneys, with the permission of their supervisors, can choose whether to enforce certain litigation procedures, such as issuing a notice

to appear, executing a removal order, or settling a case out of court, in immigration trials. Attorneys can base their decision to move forward with a case on such non-legal factors as how long the illegal alien has been in the United States; the circumstances of his arrival, whether he has served in the military; his community ties; whether he is a victim of violent crime; and his age. In addition, ICE attorneys are less likely to prosecute minors, elderly people, pregnant women, and those who are seriously ill.

This policy of discretion is part of the Obama administration’s desire to overhaul the immigration system and make it more just and less politically motivated. The administration’s message is that it would rather prosecute those illegal aliens who actually committed crimes, rather than those who entered this country just looking for a better life. Logically, it makes sense that the government would want to evict individuals who pose a threat to society before evicting those who pose no real harm to the country. The government’s resources and time are, after all, severely limited. The discretion policy also helps relieve the caseloads of seriously overworked immigration judges by presenting them with fewer cases and ensuring that those cases they do see are of a higher priority. Lastly, the government maintains that the discretion policy gives immigration lawyers power more like that of federal prosecutors, who may also use their discretion to decide which cases to bring to court.

Federal prosecutors, and indeed all prosecutors, do not have complete discretion to determine which cases to bring before a judge, however. Rule 4 of the Federal Rules of Criminal Procedure provides that a judge can only issue an arrest warrant when there is “probable cause to believe that an offense has been committed and that the defendant committed it.” Therefore, a prosecutor’s “discretion” in legal proceedings is limited to what he can prove to a judge with a reasonable degree of certainty. A prosecutor cannot choose whether to prosecute an individual for committing a crime based solely on that individual’s background or circumstances. Under the American Bar Association rules of ethical conduct, a lawyer cannot omit any relevant evidence, even if that evidence hurts his client’s case. Therefore, in an immigration proceeding, he cannot ignore the fact that his client entered the country illegally when deciding whether to prosecute.

In addition, this policy of prosecutorial discretion could potentially violate the Fifth Amendment to the Constitution, which provides that “no person . . . shall be . . . deprived of life, liberty, or property without due process of law.” The prosecutorial discretion policy allows some individuals to escape prosecution even though they have violated the law. If the government relaxes certain trial procedures for certain illegal aliens because it deems them to be in a certain class of people, it is essentially discriminating against those not in that class. Such differential treatment is not consistent with Due Process or the intent of the Constitution. There are those who argue that illegal aliens do not deserve such protections under the Constitution because they are not U.S. citizens. Scholars have debated this issue endlessly and will continue to debate it, but the Constitution clearly says “person,” not citizen. Thus, under the Constitution, all “persons,” including illegal aliens, have the right to a fair trial.

The question becomes, then, is this discrimination worth it in the interest of national security? In addition, is the discretion policy really even a worthwhile to protect country? Any individual who threatens the nation is clearly worth prosecuting, and so enforcing the law against illegal aliens who pose such a threat is clearly both logical and necessary. However, it is also entirely possible that an individual deemed to be in the protected class could be a threat to national security. If the government chooses not to prosecute that person, it will never discover this latent threat. In that situation, using prosecutorial discretion would actually end up negatively affecting national security. Therefore, ICE needs to determine whether this policy is actually effective in meeting the administration’s goals. It must balance interests of national security, judicial economy, and the important need to protect those individuals who need protecting with the interest of administering a fair system of justice.

Prosecutorial discretion has its merits and is undoubtedly helpful in creating a more efficient immigration policy, but it also raises important legal and Constitutional issues. The government cannot ignore these concerns as it moves forward with immigration reform.


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