Prosecutorial Discretion and Obama's Insincerity

Photo Credit: Immigration In Pictures (TM)Recent, preliminary numbers regarding the review of almost 300,000 immigration court cases seem to support critics of the Obama administration, who claim that the policy is too little too late. As a practicing immigration attorney it has been discouraging, to say the least, to see how what began as a promising, rational policy announcement has so derailed and transformed itself into a thinly-veiled, desperate election-year ploy.  

On August 11, 2011, the Administration announced that Department of Homeland Security (DHS) attorneys would begin reviewing cases currently pending before the nation's Immigration Courts in an effort to identify "low priority" cases.  The idea, then, was to close or otherwise not pursue such cases so as to focus limited immigration enforcement resources on cases that present a threat to national security or had other, egregious immigration violations.  

One of the most troublesome aspects of the review is that, so far, DHS attorneys have only reviewed cases where the person was represented by an attorney. Similarly, while DHS attorneys in most (but not all) jurisdictions have stated that requests for an exercise of prosecutorial discretion could be made in writing to the local office, a well-prepared request documenting the positive equities and arguing that the relevant memos should apply requires hiring a private attorney to prepare it.  However, in many cases, an alien who has hired an attorney is most likely applying and fighting for some type of relief from removal.  Whether attorneys uniformly only take on clients who have viable applications for relief is an ethical debate for another day, but the fact remains that most aliens with private attorneys are more likely than not, in my opinion, to decline any offer to administratively close their case in favor of continuing to fight to obtain some type of status.  This is probably doubly so for aliens represented by non-for-profits, who's over-burdened case loads require them to only take the strongest cases possible so as to effectively utilize their resources.

The people who could truly benefit from an offer of administrative closure or termination - those who have no current hope for relief from removal and would benefit from more time in the United States - have been effectively shut out of this so-called generous offer. Even if they have the ability to put together a well documented and effectively argued request for Prosecutorial Discretion, DHS Attorney field offices have indicated that such requests would only be entertained if submitted by attorneys.

Second, the offer of a favorable exercise of prosecutorial discretion is not necessarily that appealing, or helpful, to many who would effectively find themselves in immigration limbo while not being able to apply for work authorization to support themselves or their families.  As Greg Chen, Director of advocacy for the American Immigration Lawyer's Assocation, recently noted, "You can't expect people to not be able to feed their families and have some source of income and still survive."  In the original announcement of the Court docket reviews, the Obama administration hinted that persons who accepted an offer of prosecutorial discretion would be able to appy for work authorization.  However, in the face of intense Republican disapproval, the administration backtracked and has since stated that administratively closed cases will not become work permit eligible as a result.

Finally, the administration's use of the term "prosecutorial discretion" has itself been extremely limited. Prosecutorial Discretion has always referred to the discretion prosecutors and other law enforcement agencies have in the method in which they enforce the law.  The best example of an exercise of prosecutorial discretion is in the case of Dominique Strauss-Kahn, where prosecutors decided not tu pursue criminal charges against him despite the fact that a crime could have concievably occurred. Prosecutorial discretion, however, is not limited to deciding which cases to actively pursue.  Prosecutors or, in the case of immigration, Immigration and Customs Enforcement (ICE), can choose who to initiate deportation proceedings against, what charges to bring against each Respondent, and if or how they will oppose applications for relief.  Five years ago in the New York Immigration Court, it was far more common for a DHS attorney to agree to a certain form of relief at the beginning of a hearing.  Today, it feels like my clients are grilled on everything starting with when they state their name for the record.

If you find these arguments unpersuasive, however, let me illustrate in numbers the impact this so called prosecutorial disecretion policy has had on the total immigration court case load.  As of March 28, 2012, according to the Transactional Records Access Clearinghouse (TRAC), 2,609 cases had been closed pursuant to an exercise of prosecutorial discretion.  Of those, 207 cases were in the New York City Court (approximately ten percent).  Focusing on the main Immigration Court in New York City (the one at 26 Federal Plaza), these cases are spread out over 29 judges.  On average, seven judges hold Master Calendar hearings on any given week day Tuesday-Friday, and another four are out due to Department of Justice work schedules, which build in a day off every other week. Further, let's assume that each judge with a master calendar hearing in the morning has two individual hearings scheduled in the afternoon, for a total of fourteen individual hearings between them that day, and that all other judges on duty that day have four individual hearings scheduled (two in the morning and two in the afternoon) for a total of seventy-two cases.  This means that there are eighty-six individual (or case-dispositive, trial-type) hearings held on average each day in the New York City immigration court.

In other words, the number of cases closed pursuant to the new policy of prosecutorial discretion amounts to less than three days worth of cases in New York City alone.  When you consider that many judges have such heavy case loads that they are currently scheduling individual hearings in 2015, you understand how little of a committment the Obama administration has made towards relieving the immense pressure placed on our immigration courts, not to mention on our immigrant communities. And these numbers (unscientifically obtained, but based on years of practicing in New York's immigration courts), do not account for the fact that many judges usually schedule six to eight individual hearings a day, nor do they consider the number of cases heard at the Varick Street Court, which has three additional judges.

If the Obama administration is truly committed to helping immigrants in our country or, at a minimum, relieving the bloated dockets of our immigration courts, they will have to make a more sincere effort than what they have already shown.

Note to Immigration Attorneys and Members of the American Immigration Lawyer's Association: Several panels at this year's annual conference (June 13-16, 2012 in Nashville, TN) will highlight strategies to pursue under the prosecutorial discretion policy directives.

False Promise: The Story of a How a Man Came to Seek Asylum and Became a Criminal Instead

Delaney Hall, Newark, NJ (photo credit: Camille Mackler)An article in today's LA Times discussed the different treatment of asylum-seekers who apply for asylum immediately upon arriving at a point of entry in the US versus those who apply after having somehow made it into the country. Meanwhile, elsewhere in the immigration universe, Immigration and Customs Enforcement (ICE) proudly announced the arrest of 3,100 criminal aliens through its new, focused enforcement priorities (though some, such as Crystal Williams, the Executive Director of the American Immigration Lawyer's Association (AILA) questioned the accuracy of that announcement). Recently, these two stories intersected for me in a sad reminder of our current immigration realities.

Late last fall I was retained to represent a client detained at Delaney Hall in New Jersey. Eric* was from a country that has seen a recent rise in Islamic fundamentalism. As a recently converted yet devout Christian, Eric began fearing for his safety about a year ago, when violence against Christians began seeing a significant increase. He sought to acquire a visa to Europe, where several of his family members lived. However, his application was denied. Desperate to leave his home country, he hired a broker to help him apply for a US visa. The broker included all of Eric's biographic information on the visa application but changed some details about his job. Eric knew this was wrong, but told himself he could explain this to authorities once he arrived in America, which he thought held the promise of safety and freedom.

When Eric arrived at JFK International Airport in New York City, he was taken into a room for secondary inspection by Customs and Border Protection (CBP) agents. Scared and confused by the harsh questions and agressive tactics, he stammered out his answers and barely got out his purpose for traveling to the US. Eric was allowed into the US, but not to the safety and freedom he had hoped for. Instead, he was brought to a Federal holding facility in Brooklyn, New York and prosecuted for visa fraud. His State-appointed attorney advised him to plead guilty to the Federal charge, indicating that it would not be a statutory bar to asylum, or face a prolonged detention while waiting for trial. So Eric plead guilty, was sentenced to three months confinement, and upon his release was transferred to the custody of ICE.

In removal proceedings before a an Immigration Judge, Eric was charged as being removable from the United States based in part on his criminal record. Because he was now a criminal alien, ICE also refused his parole request, meaning Eric had to stay in detention while his case played out before the Immigration Court. ICE did keep him in Delaney Hall, however, one of its newer, "reformed" detention facilities ostensibly meant for aliens that typically do not pose a threat to society. Before the Immigration Judge, Eric was finally able to ask for asylum.

That request for asylum was denied last month - not because Eric did not meet his burden of proving he had a credible fear of persecution based on his religious beliefs, but because he had a criminal record. For this reason, the Immigration Judge did not believe Eric was entitled to a favorable exercise of her discretion. The Judge was also unpersuaded by my argument that the criminal conviction must be looked at in its context: that the lie on Eric's visa application was made because of the very fear that led him to flee to the United States and ask for asylum in the first place.

Two weeks ago, I sat in a small visitation room at Delaney Hall, trying to persuade Eric to appeal the judge's decision. With tears in his eyes, he looked up at me and said: "I'd never been in handcuffs before I came to this country." He came here looking for help and for safety, and instead was treated like a criminal.

I do not disagree with the Obama Administration's decision to deport those who truly cause harm to our society and our country. I do not think many immigrant advocates would. However, the implementation of these policies, along with the pervasive "culture of no" that seems to rule the ICE field offices, if not the headquarters in Washington, DC, have all too often led to the baby being thrown out with the bathwater and then some. Eric's case is the perfect example. He is not a danger to our society. He had never committed a crime before he lied on his visa application, and his crime was one many of us would probably have also perpetrated if faced with the same situation. Eric could be an asset to our country if given the chance. Instead, he is entering his ninth month in detention. He has yet to see any of the United States.

At the end of our conversation two weeks ago, I asked Eric for his decision regarding his appeal. He told me he has had a lot of time to read in detention, and he found a quote that pleased him recently: "A winner never quits" he told me. And so, to be continued...

*Name changed to protect the identity of the person.

Time For a Common Sense Approach to Immigration Consequences of Criminal Activity

On Tuesday, the Twitterverse lit up with pleas from DREAMers and their supporters to "save Yanelli". They implored Immigration and Customs Enforcement (ICE) officials to show compassion towards the young woman, brought to the US at age 13, as she faced imminent deportation. By 5 PM, however, the news began to spread that Yanelli had been deported to Mexico. ICE's justification was that Yanelli was a criminal alien and fit one of their self-described enforcement priorities. Her supporters argued that this was a case that must be taken in context, and that her DUI arrest (her blood alcohol was 0.9, the state's limit 0.8) was a result of the same mental troubles that led her to twice attempt suicide while in ICE custody. Yanelli, depressed at the thought of being torn away from the people she loves and the only country she knows well enough to call home, needed help, activists argued, not deportation.

Last Fall, Ruddy Mirabal was deported to the Dominican Republic as a “criminal alien”.  A year before, Ruddy was with his cousin who asked him to hold a brown paper bag Ruddy assumed contained leftover food.  They went to meet one of the cousin’s friends, who revealed himself to be an undercover police officer after the cousin tried to deal him drugs.  The bag in Ruddy’s hands, it turned out, contained not pizza, but cocaine.  Ruddy, who entered the US at 10 years old and had never been in trouble with the police before, was frightened at suddenly finding himself in jail amongst criminals.  He pled guilty to the charge his attorney told him would guaranty the least amount of jail time. He was told there “could” be “some” immigration consequences, but figured he would address them once released. While in jail, Ruddy not only completed his studies and received a high school diploma (not a GED), but he also pioneered a program that will now allow other incarcerated youths to do the same.  Sadly, he had plead guilty to manufacturing of cocaine, an aggravated felony under the Immigration and Nationality Act (INA), and ICE immediately began removal proceedings against him.  With no relief available to an aggravated felon, Ruddy was deported to a country far from his parents, his siblings, and his extended family.

These stories are only two examples emblematic of a far larger problem.  The Obama Administration’s determination to deport “criminal aliens” has become a focal point of the President’s new immigration strategy, one aimed at showing that our current system is not without compassion or common sense. However, a closer look at what makes a person a "criminal alien" shows that this rhetoric, though powerful, is flawed once enacted. Recent reports have shown that many of the so-called “criminal aliens” detained and deported by ICE have either no or very minor convictions. However even those aliens convicted of more serious offenses deserve a more nuanced approach than currently allowed by law.

Deportation is a traumatic, life-changing event, not only for the deportee but also for their family, friends, and community.  When deportation becomes part of the punishment for criminal activity, as it does when it becomes one consequence of a conviction, it is imperative that, as the old saying goes, the punishment fit the crime. 

Immigration consequences of criminal activity are notoriously harsh, and often drastically overshadow the criminal conduct that gave rise to them in the first place.   For instance, anyone convicted of an aggravated felony, as defined by the INA, with very limited exceptions is removable or inadmissible to the United States.  There is no waiver of this section of law, and the bar is permanent.  In other words, someone convicted of an aggravated felony cannot remain in the United States, even to seek asylum. The classes of crimes that constitute aggravated felonies, however, were arbitrarily imposed by Congress and do not reflect what state or Federal laws label as felonies. Many other convictions, including for minor drug offenses or victim-less crimes, require waivers to overcome grounds of inadmissability or deportablity, even if the convictions occured long ago.  

More troubling is the fact that an Immigration Judge is not allowed to look “behind the conviction,” at the conduct that gave rise to the conviction in the first place. A criminal conviction might not be an accurate barometer of the actual criminal behavior. The criminal system has its own set of rules to adjudicate guilt and come to plea arrangements so that the ultimate sentence is not always an accurate reflection of the criminal act and the accused’s level of culpability. Rather, a guilty plea is usually the result of a balancing act between the State’s and the accused’s interests.  Therefore, criminal convictions often time are not proportional to the actual act or circumstances that led to arrest.  The immigration consequences, however, are always based on the conviction itself.  This leads to immigrants facing immigration penalties much harsher than their original conduct warranted.

In both Yanelli and Ruddy’s cases, ICE was approached with requests for Deferred Enforcement – a form of discretion whereby ICE would agree to not immediately enforce the removal orders.  In both cases, ICE responded with a standard line, stating that the removal of criminal aliens is a priority, and that therefore a favorable exercise of discretion was not warranted in these cases.  In both cases, ICE refused to look behind the language of the convictions, including, in Ruddy’s case, at a letter written by his cousin stating Ruddy’s innocence.

Our immigration laws are overly harsh and inflexible when it comes to the consequences of criminal activity.  The result, is that someone, such as Ruddy, can be deported even as they pose no harm to the United States, and might, in fact, be an asset to our communities. If the Obama administration is truly committed to employing a more common-sense approach to immigration enforcement, then it must direct ICE agents to look at all aspects of a case before detaining and removing a person.  And hopefully, in time, Congress will change our immigration laws to reflect this as well.