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.