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Thousands gather in downtown Los Angeles rallying for workers rights and for immigration reform on May 2, 2013.

Discretion in Enforcing Immigration Law

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OCTOBER 2013  |  Download Adobe PDF icon

What DHS Can Do Right Now

Currently, much attention is focused on the possibility that federal immigration reform legislation being considered in Congress will resolve many of the problems created by our broken immigration system. In the meantime, however, the U.S. Department of Homeland Security (DHS) has many practical options for ensuring that its detention and deportation system does not separate families and force the removal of the members of our communities who, ultimately, should benefit from federal immigration reform legislation.

DHS should do three things:

  • Follow existing policies and promises.
  • Ensure due process of law and fairness for noncitizens.
  • Stop scapegoating and criminalizing noncitizens as “criminal aliens.”

I.  Follow existing policies and promises 

U.S. Immigration and Customs Enforcement (ICE) has announced policies that:

   DHS should make all of its existing policies applicable throughout the whole agency, not just within ICE, and should ensure that it exercises prosecutorial discretion fully, fairly, and consistently in accordance with all of the policies. To make existing policies meaningful and effective, DHS should:

  • Provide trainings on prosecutorial discretion, including a training on the “reasonable cause” standard for issuing detainers. 
  • Require recordkeeping, reporting, and evaluations (including an evaluation of detainer-issuance policy promised by the Dec. 2012 Morton memo) so that agency compliance with the policies can be measured and verified.
  • Make agents who do not follow these policies accountable in concrete ways.
  • Make public quarterly reports documenting how and when prosecutorial discretion is
    exercised. This would lessen the need for Freedom of Information Act requests.

   DHS should make sure that the full range of prosecutorial discretion mechanisms is employed. DHS should:

  • Use all the mechanisms of prosecutorial discretion at all stages of the detention and
    deportation process.
  • Not make the administrative closing of cases, which does not make work authorization
    available to the people whose cases are closed, the default mechanism.
  • Make clear to all agency personnel that deferred action is not the administrative
    remedy of last resort, but rather an appropriate remedy in the exercise of
    prosecutorial discretion at any time.
  • Make exercise of prosecutorial discretion the means of keeping families intact in the
    U.S., not just a means of allowing U.S. citizen or lawful permanent resident children to
    join their parents when they are deported.
  • Create educational materials informing the public of the process for requesting
    prosecutorial discretion.
  • Make sure that the exercise of prosecutorial discretion provides eligibility for work
    authorization, rather than a state of limbo, uncertainty, and vulnerability to being
    detained once again.

II.  Ensure due process of law and fairness for noncitizens 

DHS should ensure due process and fairness in the detention and deportation process by:

  • Ending the practice of relying on profiling based on race, ethnicity, or country of origin in deciding whom to question about immigration status.
  • Refusing to allow criminal arrests in localities that engage in racial profiling or pretextual arrests to be the means by which immigrants enter the immigration enforcement pipeline, especially in jurisdictions where the U.S. Department of Justice is investigating or suing local law enforcement authorities for such conduct or where private civil rights lawsuits have been brought against such conduct.
  • Conducting the analysis promised by the DHS Office of Civil Rights and Civil Liberties and ensuring that DHS’s “Secure Communities” immigration enforcement program does not rely on racial profiling and pretextual arrests.
  • Ensuring that agents do not pressure detained persons into agreeing to be deported, and holding agents that engage in such conduct accountable.
  • Requiring that detained people are given in-person hearings before immigration judges to ensure that, if they have agreed to a stipulated order of removal, they have done so voluntarily.
  • Advising people of their rights, including telling them that anything they say may be used against them in subsequent proceedings, before they are questioned, and ensuring that any individual interviewed by a federal immigration official voluntarily consents to the interview before it begins.

III.  Stop mischaracterizing and criminalizing noncitizens as “criminal aliens”

DHS should stop mischaracterizing and treating noncitizens who have committed minor
traffic offenses or have convictions for other minor offenses as “criminal aliens” in order to
boost its enforcement statistics. DHS should:

  • Not sweep people with traffic convictions, convictions for minor offenses, and old convictions into the detention and deportation system.
  • Not begin removal proceedings against people based on convictions they have that would not have made them deportable at the time they were convicted.
  • Not claim that people who are deported for being unlawfully present are “criminal
    aliens,” just because they committed a traffic offense or other crime in the past that
    was not even the basis for their having been deported.
  • Eliminate criminal prosecutions through Operation Streamline, in line with the U.S.
    attorney general’s announcement that he has instructed U.S. attorneys to no longer
    charge nonviolent, low-level offenders with crimes that carry mandatory sentences.
  • Recognize, when making decisions about enforcement and prosecutorial discretion,
    that the desire to rejoin their family, not criminality, drives people to return to the
    U.S. after they have been deported.

 

FOR MORE INFORMATION, CONTACT
Shiu-Ming Cheer, Immigration Attorney, 213.674.2833, cheer@nilc.org