LOS ANGELES IMMIGRATION JUDGES MEET TO DISCUSS PROSECUTORIAL DISCRETION

I am informed that Immigration Judges (IJs) of the Los Angeles Immigration Court, met this afternoon to discuss matters of "prosecutorial discretion," as envisioned in President Obama's August 18, 2011 announcement and in certain agency memoranda on the topic. See my article of August 22, 2011, entitled "WARNING! RECENT OBAMA ANNOUNCEMENT DOES NOT CONVEY IMMIGRATION STATUS."

The actual discussions and outcome of those discussions are unknown at this time. However, I am informed that judges of the San Diego Immigration Court are now allowing the alien's and Government's counsel to confer with respect to such discretion, and later advise the court as to the outcome of their discussions at a hearing for status.

This sort of prosecutorial discretion may allow a prioritization of cases which are in need of prosecution for deportation, and those which merit closure of "Removal Proceedings" given their "low priority" status. Criminal alien cases in my view, would likely be given the highest priority for removal, while non-criminal aliens who have established themselves in the U.S. over a long duration with strong ties to the U.S., might reasonably be thought to be in the lower priority range. However, it is impossible for me to know or even accurately predict the approach immigration prosecutors will actually take in these matters.

Further, termination of an Immigration Court Removal Proceedings, for aliens who do not have status, can be a double edged sword. On the one hand, the alien is no longer facing an impending deportation, with all of its adverse consequences and returns to his or her existence of living in the US as a person who is without status (it remains to be seen whether some process of employment authorization will be implemented for aliens who receive this prosecutorial discretion). On the other hand, the alien might be presenting arguable relief applications which can only be granted by the IJ while removal proceedings are ongoing.

Hence, a client who is presenting a worthy and approvable relief application to the IJ, will be faced with an incredibly significant and complex decision, if offered termination in an exercise of prosecutorial discretion.

By: Duane M. Hamilton