Prosecutorial discretion in removal proceedings is nothing new. In this regard, there is nothing new in the recent policy announcement by the Department of Homeland Security (DHS) that it will prioritize criminal aliens in deciding whether and how to pursue removal proceedings (read Secretary Napolitano's letter here).
For years, DHS promised to do just that; it just never lived up to it. As the Transactional Records Clearing House (TRAC) at Syracuse University reported already in 2007: "despite the repeated statement by the DHS that stopping terrorism and preventing serious crime are its core missions, the record shows that since the DHS was established in the wake of [9/11], most of the agency's actual work recorded in the Immigration Courts has focused on traditional immigration matters" (read the report here). Despite the fact that the post-9/11 reorganization of the Immigration and Naturalization Service into DHS was accompanied by a new mandate (both explicit and implicit) to reorient immigration policy toward a national security perspective, still 86.5% of the charges in Immigration Courts in the years leading to 2007 involved nothing more than administrative immigration violations, such as entry without an inspection or overstaying a student visa. And although such violations ought to be sanctioned as a general rule, they hardly warrant spending the billions of dollars the United States has come to spend on immigration-related "homeland security" concerns.
It was only last year, in 2010, that, as Secretary Napolitano points out in her announcement, "for the first time ever [...] over 50 percent of the aliens removed by ICE in a fiscal year were convicted criminals." And, with this last announcement, DHS seems to confirm its commitment to this new trend, by formalizing that commitment.
From a national security perspective, the rationale makes sense: in Secreatry Napolitano's words, "from a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities. Doing otherwise hinders our public safety mission-clogging immigration court dockets and diverting DHS enforcement resources away from individuals who pose a threat to public safety."
Similarly, as this Yahoo Contributor points out, from an economic perspective (not to mention an ethical, human perspective), the rationale also makes sense.
However, critics on the Right label the policy "backdoor amnesty," because it seems to them to get around the legislative route toward immigration reform, where they would expect the Republican House to block any attempt at liberalizing immigration laws. At the same time, critics on the Left denounce the announcement as a political subterfuge, delivering little in the way of comprehensive immigration legislation reform while failing to undo the negative impact of broader immigration enforcement programs like Secure Communities. Meanwhile, other stakeholders warn that the "new" policy could introduce a certain degree of confusion over both priorities and procedures in both immigration and local law enforcement.
Nonetheless, this step still promises temporary relief from removal to thousands of aliens currently struggling to maintain the life they have come to build in the United States. And this temporary relief should be welcome in the absence of legislative reform.
Attorneys for aliens in removal proceedings would be well-advised to at least try to contact their DHS counterpart and move their Judge to terminate (or, if applicable, reopen and then terminate) their clients' cases.
You can find a copy of the full prosecutorial discretion policy memorandum here.
For a more general introduction to the principle of prosecutorial discretion as applied in immigration proceedings, you can also read this article from the Immigration Policy Center.
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