Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Prosecutorial Discretion on Illegal Immigration: Prudent or Punting?

Ruth Melkonian-Hoover


April 20, 2012

By Ruth Melkonian-Hoover

In the past year, the Obama administration has chosen to focus its immigration enforcement resources on the detention and deportation of undocumented immigrants with criminal histories, while at the same time exercising discretion and often showing leniency toward lower-risk undocumented immigrants (e.g., those who’ve been in the US for a long time, who’ve served in the US military, minors and the elderly, etc). Previous administrations have exercised similar discretion; what’s novel is that, whereas prior administrations focused solely on prospective cases, namely whom to detain, this administration also requires the revisiting of cases already under review.

A number of Christian organizations have responded positively, among them the National Association of Evangelicals, the U.S. Conference of Catholic Bishops and the National Hispanic Christian Leadership Conference. They commend this administration for taking what they see to be prudent action making the best use of limited resources. It is an approach that, as Samuel Rodriguez of the NHCLC claims, “reconciles the notion of compassion with the rule of law.” Hard-line conservatives have, unsurprisingly, been far more critical. They have characterized the Obama administration’s embrace of prosecutorial discretion as a kind of amnesty through the backdoor and an attempt to curry favor with Latino voters in an election season.

In principle, the guidelines put forth by the Department of Homeland Security do seem quite reasonable—as far as they go. Indeed, prioritizing high-risk cases is only wise and humane. It not only ensures a greater focus on those who pose the greatest risk to our security but supports those who have contributed the most to our society, as well as many of those who have little culpability if any in terms of breaking the law (e.g. children of undocumented immigrants). As DHS Secretary Janet Napolitano notes, it costs the country $23,000 or more to deport a person; at that rate, immigration agencies’ budgets can only fund 400,000 deportations annually, altogether a small proportion of the 10 to 11 million undocumented immigrants who live in the U.S. On the surface, discretionary prioritization of high-risk cases should be fairly non-controversial.

However, the approach can and should be critiqued on a number of grounds. First, there are no penalties or sanctions for agents, officers, or prosecutors who don’t follow the guidelines. Moreover, a recent report by the American Immigration Lawyers Association and the American Immigration Council found most U.S. Immigration and Customs Enforcement (ICE) offices making few substantive changes in their practice. Chris Crane, president of the union representing ICE deportation agents, has resisted the implementation of the directives and the new, required training for his agents, testifying before Congress that the new approach keeps them from enforcing the existing law uniformly and limits their freedom to pursue cases that may appear low risk on the surface but are more serious on closer inspection.

More broadly, emphasizing the deportation of criminals may be prudent in the short term, but it punts on the real need for comprehensive immigration reform. It leaves non-criminal immigrants in a legal limbo, simply enabling some to avoid deportation temporarily, with the future quite uncertain. Cases that are closed can be easily re-opened. It is also unclear if all of those who benefit by this prosecutorial discretion will be eligible for immigration benefits, such as the chance to apply for work authorization, and under what criteria.

The recent move toward greater prosecutorial discretion may be a step in the right direction, but it is merely that – a step. Justice will require more on behalf of the many immigrants who’ve contributed for years to a system that has been reliant upon their contributions. Restitution for breaking the law should be made, but deportation for all is not viable or desirable. Partial solutions such as this one may avoid the near-term deportation of sympathetic immigrants, but these people will remain in the shadows. Comprehensive, rational, humane immigration reform is possible; the leaders we’ve elected and will be electing in November are called to handle complicated issues such as immigration, and we should demand that they do precisely that. We can move beyond the piecemeal legislation we’ve inherited and construct something that helps us respect the law and respect human dignity.

—Ruth Melkonian-Hoover is Chair and Associate Professor of the Department of Political Science at Gordon College in Wenham, MA.

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