Recently, the Secretary of the Department of Homeland Security announced that the attorneys of Immigration and Customs Enforcement are reviewing all 300,000+ cases currently pending with the immigration courts. The purpose of the review is to determine whether ICE should continue pursuing a case or whether it should administratively close a case in line with the Administration's priorities, which apparently included going after aliens with a criminal record.
The Administration calls this Prosecutorial Discretion. On its face, Prosecutorial Discretion might sound like a reasonable approach to alleviate some of the pressure on an overworked and backlogged system. The practice is not new and is being used in criminal cases all the time, but once again, the menace is in the details.
Unlike criminal law, Immigration Law is administrative law. ICE attorneys aren't prosecutors. Immigration Judges aren't impartial or members of the Judicial Branch of government. Judges are employees of the Department of Justice. Even the appeals court, the Board of Immigration Appeals, is part of the Department of Justice. So, the term alone shouldn't even apply.
In criminal cases, when prosecutorial discretion is used, the prosecutor's office decides that it won't bring charges when an enforcement agency has completed its investigation. There can be many reasons for the decision, but the result is that the case doesn't go forward and the charges are either dropped or never even brought. Therefore, the case won't linger in the court system.
The plan of the Administration with regard to the current immigration cases is different. ICE Removal Operations (ERO) will still continue to bring charges. The Enforcement agency can still continue to put people in removal proceedings. The input of new cases doesn't get halted. However, ICE attorneys will get to pick which case they want to put in the refrigerator to bring back later when they have more resources or different priorities. The charges aren't being dropped, the cases aren't terminated. They are administratively closed and the case remains in the system. This means that ICE at any time at any point, may decide to go forward with a case. Reasons for reopening could be a change in political leadership, increased manpower, a lull in new cases, or whatever. It leaves a client in complete legal limbo. This is not prosecutorial discretion as understood in the practice of law. This is convenient and regulated abuse of power of a government institution that is unable to manage its own workload.
This so-called prosecutorial discretion by ICE attorneys cannot be reviewed, appealed or questioned in a court of law. As a lawyer I have to put some serious question marks behind a practice that preempts a client from seeking justice in a court of law. As young people we're taught that we shouldn't take the law in our own hands and that justice and fairness is a job for the courts. In law school we're taught that we have a legal system that includes review of government decisions. This new plan is opposite of everything we've learned, since it is nothing more than government induced vigilante justice, allowing government employees to play judge and execute random justice without any review by the judicial branch. This vigilante justice creates a veil of humanity over a practice that in actuality doesn't provide a solution to the problem, which is that ICE initiates more cases than it can handle. This practice masks the problem that ICE is a department that is too large, overpaid, over-funded and has a skewed view of enforcement. I believe that if you start a case, you need to finish it and if you can't you need to drop it or not initiate it in the first place. This business of prosecutorial discretion is a dangerous path to complete chaos and since the Office of the Chief Counsel has its own political agenda, the employees of this office shouldn't be in charge of determining who gets to stay in the United States for a while longer and who doesn't. This is not for an ICE attorney to decide. This is a case for a court of law to decide.
Besides the fact that these ICE attorneys are not to be trusted and that this practice will induce more and unnecessary stress on US children of parents who are in removal proceedings, our legal system is built on judicial review. Prosecutorial Discretion in removal proceedings is the opposite of that.
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