Western State University Law Review
Volume 42 | Issue 1
Article 2
9-2014
The Use of Prosecutorial Discretion in the
Immigration Context after the 2013 ICE Directive:
Families Are Still Being Torn Apart
Madison Burga
Angelina Lerma
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Recommended Citation
Madison Burga & Angelina Lerma, The Use of Prosecutorial Discretion in the Immigration Context after the 2013 ICE Directive: Families
Are Still Being Torn Apart, 42 W. St. U. L. Rev. (2015).
Available at: http://lawscl.org/wslawreview/vol42/iss1/2
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The Use of Prosecutorial Discretion in the
Immigration Context after the 2013 ICE Directive:
Families Are Still Being Torn Apart
Madison Burga & Angelina Lerma*
I.
H.
INTRODUCTION
......................................................
HISTORY OF PROSECUTORIAL DISCRETION IN THE IMMIGRATION
COURTS ................................................................
A. The Policy Behind Prosecutorial Discretion ......................
B. The Beginning of Prosecutorial Discretion, the Morton Memo, and
D A CA .........................................................
1. How Prosecutorial Discretion Is Generally Applied ..........
2. Deferred Action for Childhood Arrivals .....................
3. Following DACA Families were Still Being Broken Up ......
C. The 2013 Order: "11064.1: Facilitating Parental Interests in the
Course of Civil Immigration Enforcement Activities. August 23,
20 13" .......... ...............................................
1. How Discretion Is Currently Being Applied .................
a) Cases Under the 2011 Memo ...........................
b) Cases Under the 2013 Memo ...........................
2. Are the Standards Being Actively Applied Correctly and
E fficiently? ......... ......................... ..............
28
28
29
30
33
35
37
38
38
39
44
III. OPPOSITION TO THE USE OF DISCRETION ............................... 46
IV. WHY A CHANGE IN ENFORCEMENT WAS NEEDED .....................
50
A. Increased Placement in Foster Care .............................
50
B. Psychological and Emotional Impact ............................
52
C. Economic Impact on Children ..................................
D. Congress Will Not Pass Reform ................................
V.
VI.
54
54
PRESIDENT OBAMA'S RESPONSE TO CONGRESS'S FAILURE TO PASS
R EFORM ...........................................................
56
PROPOSAL FOR CHANGE .............................................
58
I.
INTRODUCTION
In New York Harbor sits the Statue of Liberty' welcoming the tired and the
poor into the United States. "Between 1886 and 1924, almost 14 million immigrants
* Madison Burga is a third year student at Western State College of Law, graduating May 2015.
Angelina Lerma is a third year student at Western State College of Law, graduating May 2015. The
authors would like to thank Professor Jennifer L. Koh for advising us on this and many other projects in
this past year.
1. See Directions, NAT'! PARK SERVICE, http://www.nps.gov/stli/planyourvisit/directions.htm (last
visited Dec. 29, 2014).
Western State Law Review
Vol. 42 #1
2
entered the United States" and these immigrants were greeted by this symbol of hope.
During this time, the Statue of Liberty was transformed into the "Mother of Exiles,"
and in 1903, Emma Lazarus's poem, "The New Colossus," was engraved in bronze
3
and placed on its base.
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
'4
I lift my lamp beside the golden door!"
The Statue of Liberty has greeted those entering the United States with open
arms for over 100 years and she remains a symbol of freedom and liberty; but 111
years have passed since these words were engraved in her base, and in that time a
question has arisen: Does the current Immigration system really embrace the spirit of
the Nation engraved on this great symbol?
The topic of Immigration is a heavily debated area of law and the effects of the
debate reach the lives of legal immigrants, illegal immigrants, and citizens alike. As of
April 9, 2014, the Obama administration has deported two million people.5 This
staggering number of deported individuals does include criminals and traffickers, but it
also includes mothers, fathers, sisters, and brothers with no criminal history to speak
of.6 The effect of the increased amount of deportation on children living in the United
States is becoming increasingly apparent. Recently, a little girl traveled to the Vatican
and asked Pope Francis to help her family by asking President Obama to save her
father. 7 Jersey Vargas, ten-years-old, traveled to the Vatican with a group of
Immigration activists to plead with Pope Francis and ask him to speak with President
Obama about the deportation policy in the United States.8 The article quoted Vargas
2.
The Immigrant's Statue, NAT'L PARK SERVIciE, http://www.nps.gov/stli/historyculture/the-immi
grants-statue.htm (last visited Dec. 29, 2014).
3.
Id.
4.
EMMA LAZARUS, THiE Ni-w Coi.ossus (1883) (emphasis added), available at http://www.libertystate
park.com/emma.htm.
5.
See Stephen Dinan, Deportations Down Again; Pace Is Lowest of Obama Presidency, WASHINGTON
TIMi-S (Apr. 9, 2014), http://www.washingtontimes.com/news/2014/apr/9/deportations-down-again-
pace-lowest-obama-presiden/?page=all#pagebreak.
6.
7.
8.
See id.
See Andrew O'Reilly, L.A. Girl with Dad in Deportation Asks Pope Francis to Push for U.S.
Immigration Reform, Fox NEws LATINO (Mar. 26, 2014), http:/A1atino.foxnews.com/latino/news/
2014/03/26/la-girl-whose-dad-faces-deportation-asks-pope-francis-to-push-for-us/.
Id.
2014
Prosecutorial Discretion in the Immigration Context
who said, "I told him to pray for my family and to ask the president to stop deportation
because it's separating my family ... [h]e blessed me and told me he would bring this
up with President Obama." 9
Vargas's father, Mario Vargas, was traveling to Tennessee, looking for work
and sending the money he earned back to his family in California, when he was
arrested in 2013 for driving under the influence.' 0 He was placed in federal custody in
March, 2014.11 After seeing the news story of Vargas's travels to the Vatican, a
relative helped post the $5,000 bond to release Mario Vargas from detention in
Louisiana, allowing him to temporarily return to his family. 12 His case is still pending,
and he will have to go before an Immigration Judge ("IJ") to determine if he will be
deported. 13 Although the outcome of her father's hearing remains unknown, Vargas
hopes that Pope Francis will speak to the President, stating "I think [he will] talk to
President Obama about it because it's important to stop deporting people and breaking
up families."' 14 The President has the power to help Vargas and her family, but this
power will expire at the end of his presidency.
In 2013, Immigration and Customs Enforcement ("ICE") removed 368,644
people.
Each year the Immigration courts are flooded with people who are
attempting to enter into the country and people who are being forced out. 16 This
substantial caseload makes it difficult for the courts to keep up with the sheer number
of people who are seeking entry or facing deportation. Prosecutorial discretion is "a
prosecutor's power to choose from the options available in a criminal case, such as
filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a
sentence to the court."' 7 In 2011, prosecutorial discretion was officially introduced
into the Immigration system through the Morton Memo' 8 and, if applied correctly, it
will help relieve some of the overcrowding and allow non-violent immigrants, like
Mario Vargas, to have a chance to keep their families together. 19
15
9.
Id.
10.
See Amy Taxin, How One Girl's Journey to the Vatican Helped Free Her Fatherfrom Immigration
Detention, HUFFINGTON POST, (Mar. 29, 2014, 12:59 PM), http://www.huffingtonpost.com/2014/
03/29/vatican-immigrant-detention n_5055497.html.
11.
12.
See id.
See id.
13.
14.
See id.
O'Reilly, supra note 10.
15.
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, FY 2013 ICE IMMIGRATION REMOVALS (2013),
available at http://www.ice.gov/doclib/about/offices/ero/pdf/2013-ice-immigration-removals.pdf.
16.
See generally OFFCICE OlF PLANNING,
ANALYSIS,
& TECH.,
U.S. DEP'T OF JUSTICE, FY 2012
STATISTICAL Y17ARBOOK B2 (2013), available at http://www.justice.gov/eoir/statspub/fyl2syb.pdf
(indicating that in 2012, 410,753 cases were received by Immigration Courts and 382,675 were
processed). This left 28,078 of the cases pending and carried over into the 2013 year.
17.
BLACK'S LAW DICTIONARY 236 (9th ed. 2011).
18.
See generally Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, on
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of
the Agency for the Apprehension, Detention, and Removal of Aliens to All Field Office Directors,
All Special Agents in Charge, and All Chief Counsel (June 17, 2011), available at http://www.ice
.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf [hereinafter Morton Memo].
Since the Morton Memo, the use of Prosecutorial discretion has been revised by the ICE and other
memorandums have been issued. See infra.
19.
28
Western State Law Review
Vol. 42 #1
The purpose of this article is to examine and analyze the exercise of
prosecutorial discretion by the Executive Branch and Immigration officials. This
article will discuss: first, the history and policy behind prosecutorial discretion;
second, the 2013 memorandum issued for prosecutorial discretion; third, the
opposition to the use of discretion in Immigration courts; fourth, why a change to the
current system of prosecutorial discretion is necessary; and fifth, a proposal for change
which includes a better way to use discretion on a case-by-case basis and a system
wide policy which will eliminate the uncertainty of the current system.
II.
HISTORY OF PROSECUTORIAL DISCRETION
IN THE IMMIGRATION COURTS
A.
The Policy Behind ProsecutorialDiscretion
On June 17, 2011, ICE Director John Morton published the Priorities Memo
(Morton Memo).
2
0
The Priorities Memo acknowledges ICE's limited ability to target every
unauthorized noncitizen for immigration enforcement and in response outlines the
kinds of activities ICE will prioritize for enforcement. ICE's priorities are categorized
into three levels: 1) Aliens who pose a danger to national security or a risk to public
safety; 2) Recent illegal entrants; and 3) Aliens who are fugitives or otherwise obstruct
2
immigration controls. '
ICE, like many agencies, has the ability to use prosecutorial discretion in
deciding whether to enforce its laws against certain individuals. 22 "The Morton
Memo
. .
. emphasized the economic necessity of employing prosecutorial discretion"
because ICE is simply unable to keep up with the sheer number of violations of the
Immigration laws. 23 The use of prosecutorial discretion in the Immigration context has
been employed to reduce the caseload by prioritizing which cases are most important
24
to try, and which can be dismissed.
ICE acknowledges the importance of prioritization to reduce the burden on the
Immigration Courts, and to ensure that the training given to its agents is consistent
with the policy of prioritization. 25 "ICE's Four Primary Goals [are]: prevent terrorism
and enhance security[;] protect the borders against illicit trade, travel, and finance[;]
protect the borders through smart and tough interior immigration enforcement[;] and
20.
21.
22.
23.
24.
25.
See Morton Memo, supra note 21.
Shoba Sivaprasad Wadhia, ProsecutorialDiscretion in Immigration Agencies: A Year in Review,
LExIsNEXIS 2012 EMERGING IssuEs 6173, at 2 (2012).
See Heather Fathali, The American DREAM: DACA, DREAMERS, and Comprehensive Immigration
Reform, 37 SEATTLE3 U. L. Rv. 221, 233 (2013).
Id.
See id.
See generally U.S. IMMIGRATION & CUSTOMS ENFORCEMINT, EXERCISING PROSECUTORIAL
DISCRETION CONSISTENT WITH THE CIVIL IMMIGRATION ENFORCEMENT PRIORITIES
at http://www.ice.gov/doclib/foia/prosecutorial-discretion/training-exercising-pd.pdf.
(2012) available
2014
ProsecutorialDiscretion in the Immigration Context
construct an efficient, effective agency[.] ' '26 Through prosecutorial discretion ICE
officials are able to "efficiently and effectively" enforce the Immigration laws by
prioritizing their efforts towards illegal immigrants who pose a risk to the country as
opposed to those with United States citizen children, who pose no risk.
Although controversial, prosecutorial discretion is both "practical and
humanitarian. '27 Since 1976, ICE has been informed of the benefits of prosecutorial
discretion, including the practical benefits, which allows the overworked system to
make "choices as to the most effective and desirable way in which to deploy their
limited resources. 28 The same legal opinion also noted the humanitarian
considerations and the general counsel said, "[i]n some situations, application of the
literal letter of the law would simply be unconscionable and would serve no useful
purpose. ' 29 When a person enters the country illegally, lives here peacefully, works,
has children, and has a life built in the United States there is no benefit to using the
limited ICE resources to deport that person simply for being undocumented in the
United States when they pose no risk to the people of the United States.
"'What people don't realize is that our entire system of law enforcement runs
with prosecutorial discretion. In most crimes in the country, citizens are never
prosecuted. There's never enough money for the police and the prosecutors and the
court system and jails and prisons, so one prioritizes."' 30 The use of the discretion in
criminal context reduces the burden on an overcrowded system and it would have
similar benefits in the Immigration context; it is a way to ensure the best use of limited
resources while still enforcing the laws of the United States.
B.
The Beginning of ProsecutorialDiscretion, the Morton Memo, and
DACA
Prosecutorial discretion came to be used in the Immigration Courts through
deportation proceedings with the issuance of the 2011 Morton Memo. 3 1 The concept
of prosecutorial discretion "generally refers to the agency's determination of whether
or not the immigration laws should be enforced against a particular individual or group
of persons. '32 Such discretion "may be exercised by [the Department of Homeland
Security] at any stage of the immigration enforcement, including, but not limited to,
26.
27.
28.
29.
30.
31.
32.
Id. (emphasis added).
Memorandum from Sam Bersen, Gen. Counsel, on Legal Opinion Regarding Service Exercise of
Prosecutorial Discretion to Commissioner 1 (July 15, 1976), availableat http://www.ice.gov/doclib/
foia/prosecutorial-discretion/service-exercise-pd.pdf.
See id.
Id.
Ana Ley, Administrative Dismissals of Immigration Cases in Las Vegas Fall Below the National
Average, LAS VEGAS SUN (May 2, 2014, 2:00 AM), http://www.lasvegassun.com/news/2014/may/
02/administrative-dismissals-immigration-cases-las-ve/ (quoting Susan Long, co-director of
Transactional Records Access Clearinghouse at Syracuse University).
See generally Morton Memo, supra note 21.
Shoba Sivaprasad Wadhia, The Immigration Prosecutorand the Judge: Examining the Role of the
Judiciary in ProsecutorialDiscretion Decisions, 16 HARV. LATINo L. Ri-w. 39, 42-43 (2013).
30
Western State Law Review
Vol. 42 #1
interrogation, arrest, charging, detention, removal proceedings, appeals, or after a
removal order has become final." 33
The purpose of prosecutorial discretion in the Immigration context rests upon
two principles: (1) there are not enough resources to "target every person against
whom a legally sufficient charge exists"; and (2) removal is not always appropriate for
those with "strong equities or related humanitarian factors, but who otherwise lack a
formal remedy under the law to prevent removal. '34 To ensure that the purpose of
prosecutorial discretion is met, ICE has applied different methods for the use of the
discretion.
1.
How ProsecutorialDiscretion Is Generally Applied
Prosecutorial discretion is not a form of relief from deportation nor does it
give an illegal immigrant status. It is merely "a term used to describe the decisionmaking authority of ICE to allocate resources in the best possible manner... ...
35 The
relief granted by prosecutorial discretion is deferred action, which is "an act of
administrative convenience to the government which gives some cases lower priority,
if the alien establishes an economic necessity for employment." 36 When deferred
action is used the government chooses not "to arrest, charge, prosecute, or remove an
individual at that time for a specific, articulable reason." 37 This is merely the decision
not to prosecute someone at the given moment.
When an ICE official is faced with a new case, the official can use
prosecutorial discretion to "decide whether the proceedings before [Executive Office
for Immigration Review] should continue or whether prosecutorial discretion in the
form of administrative closure is appropriate." 38 Prosecutorial discretion includes
"joining in a motion to administratively close a case[,] cancelling or refraining from
filing a Notice to Appear or NTA (charging document), and granting deferred
action . . . . 39 ICE officials are instructed to exercise any discretion "prior to the
institution of proceedings. '40 The rationale behind using this discretion at earlier times
is that "it makes little sense to put an alien through the ordeal and expense of a
deportation proceeding when his actual removal will not be sought. '41 After all, there
are practical considerations - "Deportation proceedings tie up Government
manpower and resources that could be used in performing other important functions.
33.
34.
Id. at 42.
Wadhia, supra note 24, at 1.
35.
U.S.
& CUSTOMS ENFORCEMENT, PROTECTING THE HOMELAND: TOOL KIT FOR
4 (2011), available at http://www.ice.gov/doclib/aboutloffices/osltc/pdf/tool-kit-forprosecutors.pdf.
8 C.F.R. § 274a.12(c)(14) (2014).
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, supra note 38, at 4.
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, supra note 28, at 21 (alteration in original).
See Shoba Sivaprasad Wadhia, Reflections on ProsecutorialDiscretion One Year After the Morton
IMMIGRATION
PROSECUTORS
36.
37.
38.
39.
Memo, LEXiSNEXiS 2012 EMERGING ISSUES 6417, at 1 (2012).
40.
41.
See Memorandum from Sam Bersen to Commissioner, supra note 30, at 7.
Id.
2014
Prosecutorial Discretion in the Immigration Context
31
Given the present illegal alien problem such a use of scarce resources on aliens whom
42
the Service does not ultimately intend to deport is indefensible.
ICE works with the Immigration Court to determine whether a case would be
considered "low priority" and thus should be administratively closed based on
prosecutorial discretion. 43 Any person facing a deportation proceeding can ask ICE to
use prosecutorial discretion to halt the proceedings. 44 Immigration officials will utilize
a comprehensive list of factors that can be considered in deciding whether to grant
discretion. 45 In the Morton Memo, there are nineteen factors 46 that the officials can
consider:
1. The agency's enforcement priorities;
2. Length of the person's presence in United States with
consideration given to presence in lawful status;
3. Circumstances of arrival, especially if entering as a young child;
4. Pursuit of education in the United States;
5. Whether the person or an immediate relative served in the United
States Armed forces;
47
6. Criminal history;
48
7. Immigration history;
8.
49
National security or public safety concerns;
9. Ties and contributions to the community;
10. Ties to their home country and the condition of the country;
11. Age, with consideration given to minors and the elderly;
12. Whether the person has a United States citizen or permanent
resident spouse, child, or parent;
13. Whether the person is a primary caregiver of person with mental
or physical disabilities, a minor, or a seriously ill relative;
14. Whether person/spouse is pregnant or nursing;
15. Whether person/spouse suffers from severe mental or physical
illness;
16. Whether nationality makes removal unlikely;
17. Whether the person is likely to be granted some form of relief
50
from removal;
42.
43.
Id.
See
NAT'L IMMIGRATION LAW CTR. ET AL., SImLF-HI-,LP GUIDE FOR A PROSECUTORIAL DISCRETION
44.
45.
2 (2012), availableat http://www.chirla.org/sites/default/files/Prosecutorial%2ODiscretion
%20Pro%2OSe%2OPacket.pdf.
Id.
Morton Memo, supra note 21, at 4.
46.
See id.; see generally NAT'L
REQUEST
47.
48.
49.
50.
IMMIGRATION LAW CTR.,
supra note 46 (providing an example of a
letter asking for prosecutorial discretion; the letter outlines the Morton Memo factors and provides
examples of statements the alien can make to argue his or her situation and why discretion should
apply).
Morton Memo, supra note 21, at 4-5 (noting that special consideration is given to "serious felons,
repeat offenders, or individuals with a lengthy criminal record of any kind").
Id. ("[l]ndividuals with an egregious record of immigration violations, including those with a record
of illegal re-entry and those who have engaged in immigration fraud.").
Id. (including possibly known gang members).
Id. at 4 ("[W]hether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident.").
Western State Law Review
Vol. 42 #1
18. Whether the person is likely to be granted temporary or
permanent status; 51 and
19. Whether the person has been or is cooperating with enforcement
52
authorities.
These factors are not considered exhaustive. 53 Additionally, meeting some of
the factors listed may not be enough to be granted discretion.
The authors interviewed an attorney who has extensive knowledge in this area
to the extent that officials follow the nineteen factors issued under the Morton Memo.
The attorney replied,
In Los Angeles, I think that prosecutorial discretion is offered in most
cases where the alien has no criminal record, has some family ties to
US citizens or lawful permanent residents, has been present in the
United States for approximately 10 years (none of these are hard
criteria, and the strength of one [i.e. multiple US citizen children, US
citizen parents and siblings, and US citizen spouse] may outweigh a
weaker criteria [i.e. a single conviction for driving without a license or
less than 10 years of presence in the United States]). 54
Therefore, this demonstrates that some factors are weighed heavier than
others, while some factors may not be considered at all, on a routine basis.
According to the Morton Memo, "it is generally preferable to exercise such
discretion as early in the case or proceeding as possible in order to preserve
government resources that would otherwise be expended in pursuing the enforcement
proceeding. '55 In addition, "[iut is also preferable for ICE officers, agents, and
attorneys to consider prosecutorial discretion in cases without waiting for an alien or
alien's advocate or counsel to request a favorable exercise of discretion. '56 The
officials "should examine each such case independently to determine whether a
favorable exercise of discretion may be appropriate. 5 7 If ICE utilizes prosecutorial
discretion to administratively close the case, that is all that happens-no formal relief
is granted. 58 If the request is denied, ICE is not required to notify the applicant. 5960 In
51.
52.
53.
54.
Id. (generally referring to protection as "an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime").
Id. (generally referring to whether the person is "currently cooperating or has cooperated with
federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of
Justice, the Department of Labor, or National Labor Relations Board" in connection with some
investigation).
Id.
E-mail from Sabrina Damast, Attorney, Immigration Court Watch Program, to Madison Burga and
Angelina Lerma (June 2, 2014, 3:00 PM) (on file with author).
55.
56.
57.
Morton Memo, supra note 21, at 5.
Id.
Id.
58.
See NAT'L IMMIGRATION LAW
59.
See id. at 6 ("ICE may not notify you if it denies your request for prosecutorial discretion.
Therefore, if you have not received a letter within one month of your request, contact your local ICE
office. Remind them of your letter requesting prosecutorial discretion and ask them if they made a
decision. If they did give you prosecutorial discretion, asked for a confirmation letter. If ICE did
NOT use its discretion then there are no changes in your situation.").
CTR.,
supra note 46, at 3.
2014
Prosecutorial Discretion in the Immigration Context
addition, the ICE decision of whether to grant prosecutorial discretion "is not a
decision that the [IJ] or the [Board of Immigration Review] may review."' 61 There is
no change in the individual's Immigration status, which means the person remains
unauthorized to stay in the United States, but they will not be forced to leave
immediately. 62 This leaves the immigrant in an unauthorized, yet authorized, stay in
the United States if they offered the discretion.
Even with the ability to exercise prosecutorial discretion, it is not readily
apparent that discretion is actually being utilized to close a substantial amount of
cases. 63 There has been no meaningful change in practice 64 because all prosecutorial
discretion does is close the current case; it does not give any level of security to the
families. Additionally, the use of prosecutorial discretion has varied from state to
state, ranging from approximately three percent of cases in Las Vegas, San Antonio,
and New York to twenty-four percent in Los Angeles 65 and thirty-one percent in
Tucson, Arizona. 66 The outcome of any request for discretion would rest upon the
location of the ICE office and where the immigrant was being charged, making the
practice a lottery. Even with some areas applying prosecutorial discretion to thirty
percent of the cases, the national average of the use of discretion is only approximately
seven percent, 67 making it underutilized. However, there is one form of discretion that
is widely used but it is limited to a specified immigrant class, Deferred Action for
Childhood Arrivals.
2.
8
Deferred Action for Childhood Arrivals6
Another form of prosecutorial discretion is Deferred Action for Childhood
Arrivals ("DACA"). The Executive Branch had shown a willingness to help
60.
"The rejection may come in writing or the Department of Homeland Security's attorney may orally
state that the Department is not going to exercise its discretion to administratively close a case." Email from Sabrina Damast to Madison Burga and Angelina Lerma, supra note 57.
61.
62.
63.
18B Fed. Proc., L. Ed. § 45:1663 (2014).
See id.
See Sarah Rogerson, Lack of DetainedParents' Access to the Family Justice System and the Unjust
Severance of the Parent-ChildRelationship, 47 FAM. L.Q. 141, 142 (2013).
64.
65.
66.
Id.
According to Sabrina Damast, Prosecutorial discretion is offered "Pretty frequently-I have seen
[prosecutorial discretion] offered to adult asylum applicants and adults who will be eligible to adjust
their status in the future when their priority date is current." E-mail from Sabrina Damast to
Madison Burga and Angelina Lerma, supra note 57.
See Ley, supra note 33.
67.
ProsecutorialDiscretion Rarely Used in Immigration Cases, Fox Ni-ws
68.
http://latino.foxnews.com/latino/news/2014/04/24/prosecutorial-discretion-rarely-used-in-immigra
tion-cases/.
DACA was eventually created as a result of the actions of the Dream 9 Team. See Ted Hesson, 9
LATINO
(Apr. 24, 2014),
DREAMer Actions That Advanced Immigration Reform, Auc Nijws (Aug. 16, 2013, 10:25 AM),
http://abcnews.go.com/ABC-Univision/dreamer-protests-advanced-immigration-reform/story?id=
19915997. The Dream 9 Team were a group of young individuals who crossed the United StatesMexico Border in protest of the United States' deportation policies. Id. The Dream Team was placed
in detention. Id. While in detention, the Team organized protests against current practices. Id. These
actions as well as the Protest of 8 other DREAMers eventually led issuing Deferred Action for
Childhood Arrivals. See id.
Western State Law Review
Vol. 42 #1
undocumented families by starting with the children, as evidenced by the creation of
the DACA program. The DACA program was created "in order to prevent [certain]
low priority individuals from being placed into removal proceedings or removed from
the United States." 69 In particular, DACA targets "individuals who entered the United
States as a child. '70 Officials were instructed to "immediately exercise their discretion,
on an individual basis." 7 1 DACA is a step in the right direction, allowing those
individuals who did not choose to come to the United States but who have lived their
entire lives in this country to stay.
DACA was introduced on June 15, 2012 when the Secretary of Homeland
Security declared that some undocumented persons who came to the United States as
children may qualify for deferred action and work authorization. 72 In this context,
deferred action is described as an act of prosecutorial discretion and does not provide
an individual with lawful status. 73 In order to qualify for this particular form of
prosecutorial discretion, the applicant must have come to the United States before his
or her sixteenth birthday and be under the age of thirty-one as of June 15, 2012. 74 The
applicant must be continuously residing in the United States since June 15, 2007, and
must have been physically present in the United States on June 15, 2012. 75 The
applicant must also be physically present at the time of making the request. 76 In
addition, the applicant must be in the United States without lawful status-either by
entering without inspection or having an expired status as of June 15, 2012.77 What is
different about this form of discretion is that the applicant must currently be enrolled
in school, be a high school graduate, have the passed General Educational
Development ("GED") test, or be an honorably discharged veteran of the Armed
Forces of the United States or Coast Guard.78 Finally, the applicant must not have
"been convicted of a felony, significant misdemeanor, or three or more other
misdemeanors, and [must] not otherwise pose a threat to national security or public
safety. ' 79 This discretion is open to people who arrived in the United States as
children and have lived here peacefully since that time.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
See Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, on Secretary
Napolitano's Memorandum Concerning the Exercise of Prosecutorial Discretion for Certain
Removable Individuals Who Entered the United States as a Child to All Employees, U.S.
Immigration & Customs Enforcement (June 15, 2012), available at http://www.ice.gov/doclib/
about/offices/ero/pdf/s I-certain-young-people-morton.pdf.
See id.
Id.
Considerationfor Deferred Action for Childhood Arrivals Process (DACA), U.S. CTZITENSHw &
IMMIGR. SERVICES,
http://www.uscis.gov/humanitarian/consideration-deferred-action-childhoodarrivals-process (last updated Oct. 27, 2014).
Id.
See id.
Id.
See id.
See id.
See id.
Id.
2014
Prosecutorial Discretion in the Immigration Context
This particular form of discretion has been fairly successful. As of March,
553,000 DACA applications have been granted. 80 About seventy percent
over
2014,
of the DREAMERs 8' reported that they began their first job or moved to a new job
once approved for DACA. 82 About fifty percent of the applicants have become
financially independent and helped their families financially as well.8 3 Over twentythree percent of the recipients returned to school, twenty percent purchased their first
vehicle, and thirty-seven percent obtained their first credit card after being approved
for DACA. 84 These statistics show that prosecutorial discretion is capable of being
implemented with great success. The Obama Administration has shown a willingness
to help families by targeting children first. 85 This is an excellent start to reform.
However, the next step is to improve the discretionary measures already in place for
the parents of the children in this country. These parents are still facing deportation
and the potential of losing their United States citizen children.
3.
Following DACA Families were Still Being Broken Up
The only way Liliana Ramos can talk to her minor daughter is by phone she was deported to Mexico while her daughter remains in Oregon. 86 Liliana had a
"clean record and two decades of work, paying taxes, going to church and providing
for her U.S.-born children. ' '87 Liliana lived in the United States for twenty-one years
and came here as a teenager. 88 She has "two daughters and [a] son she has raised as a
single mother since her ex-husband left them seven years ago." 89 She was arrested
after the Morton Memo was issued but she was still deported. 90 "Between July 1, 2010
and September 31, 2012, ICE removed 204,810 parents of U.S. citizen children, nearly
23 percent of people removed during that time." 9 1
Even after the Morton Memo was passed, many families are still being torn
apart as a result of deportation. While walking down the street in Santa Ana,
80.
Griselda Nevarez, DACA Is Improving the FinancialWell-Being of Dreamers, Survey Finds, Voxxi
81.
82.
(May 20, 2014), http://voxxi.com/20l4/05/20/daca-financial-dreamers-survey/.
This is a term used to describe childhood arrivals who lobby for Immigration reform.
Nevarez, supra note 83.
83.
See id.
84.
85.
Id.
"[Prosecutorial discretion] is not a guarantee of anything (nor is DACA). They are both creations of
executive policy. When the current executive (President Obama) leaves offices, his successor may
cancel both programs." E-mail from Sabrina Damast to Madison Burga and Angelina Lerma, supra
note 57.
86.
See William M. Welch, DeportationsTear Some Families Apart, USA TODAY (Dec. 5, 2011, 1:58
87.
PM), http://usatoday30.usatoday.com/news/nation/story/2011-12-04/illegal-immigrationdeportation-obama-gingrich-homeland-security/51646680/1.
Id.
88.
See id.
89.
Id.
90.
See id.
91.
Letter from Wade Henderson, President & CEO, Leadership Conference, and Nancy Zirkin, Exec.
Vice President, Leadership Conference, on Immigration Enforcement to President Obama (May 19,
2014), available at http://civilrightsdocs.info/pdf/policy/letters/2014/Letter-to-Pres-Obama-re-im
mig-enforcement-05-19-14.pdf.
Western State Law Review
Vol. 42 #1
California, Samuel Sixtos-Gomes was taken by officers claiming he was being stopped
about an unpaid parking ticket. 92 He was placed in detention away from his eightyear-old daughter and his siblings that rely on his support since their father was
deported. 93 ICE officials did not specify why he was detained but mentioned that he
had been removed from the United States six times since 2007 and although he has no
criminal record, there is no indication that he will be granted discretion. 94 Prior to his
arrest he was attempting to obtain his GED and would be a good candidate for
discretion, but because prosecutorial discretion is entirely at the discretion of ICE
officials, he must rely on community support, and a letter from Congresswoman
Loretta Sanchez for the chance of being granted discretion. 95 In her letter,
Congresswoman Sanchez wrote, "I respectfully request that you review Mr. SixtosGomez's case to determine if he meets the qualifications for prosecutorial discretion,
[he] is not considered a danger to the community, and the requested review adheres to
all applicable laws and regulations. ' '96 Even with the letter from the congresswoman,
there is no guarantee that Sixtos-Gomes will be granted discretion and his family is left
to wait and hope for the best. Under the current system, immigrants and their families
must rely on the unpredictable ICE prosecutors to determine if they will be granted
discretion.
Despite the existence of prosecutorial discretion, many families are still being
torn apart and leaving the United States citizen children behind. This has a huge
impact on the children who are left by their parents after their parents were sent back
to their countries of origin. 97 These children face "psychological trauma of having lost
a parent to deportation." 98 As a result of this trauma, many protesters moved to have
the federal government create a system that better serves family values. 99 The children
left behind were seen as "innocents" and the ones being harmed in this situation.100
Pressure built on President Obama, and eventually resulted in the August 23, 2013
Memo ("2013 Memo") being issued. The 2013 Memo was a "major victory for
children [because it reduced] the likelihood that Immigration enforcement will tear
92.
See Gabriel San Roman, Activists Rally Around Samuel Sixtos-Gomez, Nabbed by ICE and Facing
Deportation, Separation from His 8-year-old Daughter, OCWEIIKILY (May 15, 2014, 7:33 AM),
http://blogs.ocweekly.com/navelgazing/2014/05/samuelsixtos-gomez.php.
93.
94.
95.
See id.
See id.
See id.
96.
97.
Id.
See generally Jacquellena Carrero, New ICE Policy Limits Separation of Parents and Children,
NBCLATINO (Aug. 24, 2013, 11:43 AM), http://nbclatino.com/2013/08/24/new-ice-policy-limitsseparation-of-parents-and-children (discussing the effect deportation has on children whose parents
are returned to their countries of origin).
98. Id.
99. See id.
100. See id.; see also Melanie Hunter, Rep. Gutierrez: Obama 'Should Be Expanding His Prosecutorial
Discretion', CNSNEWS.COM
(Dec. 3, 2013, 4:17 PM), http://cnsnews.com/news/article/melanie-
hunter/rep-gutierrez-obama-should-be-expanding-his-prosecutorial-discretion (discussing that
children should not be the ones prosecuted and President Obama previously spoke out about the
effect on children when he announced DACA; the children who were brought to this country are not
the ones who pose the imminent threat and should not be the ones who are being punished by
deportation proceedings).
2014
Prosecutorial Discretion in the Immigration Context
families apart."'' ° The 2013 Memo offered new hope for parents of United States
citizen children.
C.
The 2013 Order: "11064.1: FacilitatingParental Interests in the
Course of Civil Immigration Enforcement Activities. August 23, 2013"02
In 2011, President Obama announced that he wanted ICE to shift their focus
on who the agency deported. 0 3 On August 23, 2013, a new Memo was issued that
addressed the underlying policies and impact of deporting parents of United States
citizen children.'0 4 This Memo laid out the priorities on who the government would
try to deport in light of these issues. 0 5 This Memo is considered a supplement to the
"existing ICE enforcement priority memoranda" and "prosecutorial discretion
memoranda, as well as other related detention standards and policies that govern the
06
intake, detention, and removal of alien parents."'
The 2013 Memo specifically addressed the rising problem of deportation that
results in breaking up families, and the resulting trauma to the children. The policy
behind the 2013 Memo is simple: "ICE personnel should ensure that the agency's
immigration enforcement activities do not unnecessarily disrupt the parental rights of
both alien parents or legal guardians of minor children."' 0 7 This was a humanitarian
attempt to keep parents and their United States citizen children together and to protect
parental rights. The 2013 Memo indicated that:
Particular attention should be paid to immigration enforcement
activities involving: 1) parents or legal guardians who are primary
caretakers; 2) parents or legal guardians who have a direct interest in
family court or child welfare proceedings; [and] 3) parents or legal
101.
Stephen Dinan, Obama Adds to List of Illegal Immigrants Not to Deport: Parents, WASHINGTON
TiMIs (Aug. 23, 2013), http://www.washingtontimes.com/news/2013/aug/23/new-obama-policywarns-agents-not-detain-illegal-i/?page=all (quoting Bruce Lesley, President of the First Focus
Campaign for Children).
102. See generally memorandum from John Sandweg, Acting Dir., U.S. Immigration & Customs
Enforcement, on 11064.1: Facilitating Parental Interests in the Course of Civil Immigration
Enforcement Activities (Aug. 23, 2013), available at http://www.ice.gov/doclib/detention-reform/
pdf/parental-interest directivesigned.pdf [hereinafter FacilitatingParentalInterests].
103. See Anthony Advincula, After Parents' Deportation, U.S. Children Face Mental Struggles,
NEW
AM. MLDIA (Feb. 18, 2014), http://newamericamedia.org/2014/02/after-parents-deportation-uschildren-face-mental-struggles.php (explaining the President's desire for ICE to start focusing on
deporting criminals, and that expert analysis indicated that non-criminal detainees are among the
highest numbers being deported).
104. See generally FacilitatingParentalInterests, supra note 105.
105. See Dinan, supra note 104 ("The memo is the latest in a series of directives issued by ICE and by
Homeland Security Secretary Janet A. Napolitano that try to lay out priorities for whom the
government will detain and try to deport. Ms. Napolitano says her department is funded to deport
about 400,000 immigrants a year out of an estimated population of II million. She said it makes
sense to focus those deportation efforts on immigrants with serious criminal records or who have
violated immigration laws repeatedly.").
106. FacilitatingParental Interests, supra note 105, at 1.
107. Id.
Western State Law Review
Vol. 42 #1
guardians whose minor children are physically present in the United
08
States and are USCs or LPRs.1
Field Officer Directors were specifically instructed to "weigh whether an exercise of
prosecutorial discretion may be warranted for a given alien and [] consider all relevant
factors °9 in this determination, including whether the alien is a parent or legal
guardian of a USC or LPR minor, or is a primary caretaker of a minor.""10
This determination must be done "as early in the case or proceeding as
possible.""' Consideration should also be given to determine whether the person being
detained is a primary caregiver of a United States citizen child. 1 2 The 2013 Memo
was an extension of the previously issued Morton Memo, and was designed to protect
the family.
1.
How Discretion Is Currently Being Applied
a)
Cases Under the 2011 Memo
Juan Pedro Ponce-Martinez, age twenty-nine, has lived in the United States for
4
over twelve years." 3 He has a wife and five children who are United States citizens."
Juan found himself faced with removal proceedings and was charged with being
"inadmissible as present without being admitted or paroled."" 5 Juan asked the
Department of Homeland Security ("DHS") to grant him prosecutorial discretion in his
case, but this was denied.16 On appeal, Juan requested that his case be remanded so
that DHS could address his discretion claim in some "meaningful way" but this
request was also simply denied"17 without substantial explanation." 8 Juan's case is one
of the thousands that pass through the Immigration system each year. Granted, this
case arose before the issuance of the 2013 Memo and the outcome should,
theoretically, be different under the new guidelines, but there is no indication that the
2013 Memo is being used to expand discretion.
Another example is Gerardo Hernandez-Contreras who came to the United
States when he was fifteen-years-old after his father died and he needed to find some
108. Id. USC stands for United States Citizen; LPR stands for Legal Permanent Resident. See id.
109. In addition to the factors listed under the 2011 Morton Memo. See generally Morton Memo, supra
note 21.
110. FacilitatingParentalInterests, supra note 105, at 3.
111. Id.
112. See Advincula, supra note 106; see generally FacilitatingParentalInterests, supra note 105, at 3
113.
114.
115.
116.
117.
118.
(instructing that parents should be placed in facilities closer to their children and be afforded the
opportunity to make a decision about who takes care of the children while they are detained).
In re Juan Pedro Ponce-Martinez, No. A094 902 526, 2013 WL 2610120, at *1 (BIA May 1, 2013).
Id.
Id.
See id. at *2.
See id.
The court record does not indicate that the father had anything on his record that would warrant a
denial of discretion. Rather, the case was simply dismissed and removal proceedings continued. This
case was decided before the 2013 Memo was issued.
Prosecutorial Discretion in the Immigration Context
2014
form of work.1 19 When Gerardo was twenty, he married his wife Aide Vasquez, who
is a United States citizen. 120 They have two children who are also United States
citizens. 121 On November 27, 2012, Gerardo was pulled over by the San Diego Police
Department for talking on his cell phone while driving - he was talking to his wife
while going to pick up ice cream for his children. 22 DHS was called and he was
deported to Mexico one day later. 23 Gerardo had a wife and a family, but this still did
not stop him from being deported.
One major criticism of Gerardo's situation was that DHS simply failed to
apply its own prosecutorial discretion policy. 124 After all, Gerardo "had no criminal
12 5
history, had lived in the country for over a decade, and had U.S. citizen family."
However, "DHS does not screen all individuals prior to deportation to determine if
they are eligible for discretion . . . [so Gerardo] slipped through the cracks."' 126 This
took Gerardo away from his wife and children even though he was a low priority
illegal immigrant. Under the 2013 Memo, Gerardo would be a candidate for
discretion, but did the 2013 Memo change anything?
b)
Cases Under the 2013 Memo
There are times when prosecutorial discretion is being enforced according to
the policies underlying the 2013 Memo. For example, on May 28, 2014, J.P. reached
the point of sheer desperation when he decided to turn himself into Immigration
officials. 27 J.P. had his wife drive him to Santa Ana, California, and he walked into
the United States Citizenship and Immigration Services ("USCIS") building. 128 J.P.
patiently waited in line so he could speak with the receptionist on duty. 129 When it
was his turn, he told the receptionist that he was undocumented and that he wanted to
turn himself into ICE officials. 130 J.P. received erroneous legal advice that if he was
detained by ICE he would have a quicker pathway to obtain a work permit - he did
119. Neema Singh Guliani, How a Father Gets Deportedfor a Traffic Violation, AM. Civ.
LBERTII-.S
(Apr. 14, 2014, 2:10 PM), https://www.aclu.org/blog/immigrants-rights-racial-justice/howfather-gets-deported-traffic-violation.
120. Id.
UNION
121. See id.
122. Id.
123. Id.
124. Id.
125. Guliani, supra note 122.
126. Id.
127. Interview by Madison Burga with J.P. (May 29, 2014) (Names have been changed to protect
confidentiality). J.P. explained that he has been trying for the past month and a half to get "caught"
by Immigration officials. J.P. said that just two weeks prior to turning himself into the Santa Ana
facility, he walked on Interstate 5 from Oceanside towards San Ysidro for about twenty miles. J.P.
explained that he was trying to get arrested for a minor offense, hoping he would be placed in
removal proceedings. He eventually passed a Border Patrol officer who simply told J.P. to remove
himself from the freeway and directed J.P. to the nearest bus station. This is just one of the many
attempts J.P. has made to try and get arrested so he could be placed in removal proceedings. Id.
128. Id.
129. Id.
130. Id.
Western State Law Review
Vol. 42 #1
not qualify for any other pathway towards citizenship.' 3' J.P. said the woman seemed
delighted to accommodate his request and called for the ICE supervisor who was on
duty at the time. 132 The ICE supervisor asked why J.P. wanted to turn himself in and
J.P. explained that he heard if he was in removal proceedings he could apply for a
133
work permit.
The ICE supervisor asked J.P. if he had any prior convictions and whether he
had a family in the United States. 134 J.P. explained that he had no prior convictions
and that his wife and children were indeed in the United States. 35 The supervisor
refused to arrest J.P., explaining that "this is not the way" and said that J.P. should just
try to apply for another form of relief. 136 J.P. almost begged the official to place him
in custody but the supervisor refused to do so - the supervisor explained that going to
a detention center is just not the answer for J.p.137
The ICE supervisor told J.P. to check back in with the secretary before leaving
to see if there are other forms of relief possibly available. 38 J.P. explained that the
once pleasant receptionist turned hostile and asked why J.P. was not in jail yet - she
expressed dissatisfaction that the supervisor was "not doing his job."' 39 J.P. still tried
to ask for any form of relief but the woman turned him away, claiming that there was
40
nothing for him there - he should just return to Mexico.
Although J.P was not arrested, nor did he face the IJ, the ICE official did ask
him questions that were indicative of exercising prosecutorial discretion. This is
evidenced by the supervisor asking about the prior criminal history, and family in the
United States. While the supervisor did not make the exercise of discretion readily
known to J.P., it is apparent that this is what the supervisor was doing. These are the
typical questions that an official would ask to determine whether a proceeding should
even be initiated.
In the case of J.P., it appeared that the ICE officer was attempting to use
prosecutorial discretion, but not all of the current cases that come to light indicate that
the 2013 Memo's policies are being enforced to the most effective means possible. In
September, 2013, Mr. John Doe was caught by Border Patrol as he attempted to cross
the border between Mexico and the United States.' 4' He explained that he was
crossing back over to the United States because his two daughters were still in the
United States. 142 Mr. Doe's story begins in 1988 when the eighteen-year-old crossed
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
Id.
Id.
Interview by Madison Burga with J.P., supra note 130.
Id.
Id. J.P. has two sons who are United States citizen children-ages four and thirteen.
ld.
Id.
Id.
Interview by Madison Burga with J.P., supra note 130.
Id.
Interview by Madison Burga with John Doe (May 22, 2014) (Names have been changed to protect
confidentiality.).
142. Id.
2014
Prosecutorial Discretion in the Immigration Context
into the United States under a work permit to perform farm labor. 143 He hoped to
eventually receive amnesty that was sweeping the nation at the time.' 44 He explained
that he came to this country wanting to be an American. 145 He has not been back to his
hometown since he left in 1988.146
However, Mr. Doe did not know how to assimilate to this country and in 1989
he was arrested and charged with alien smuggling. 147 He was trying to help one of his
family members come into the country illegally. 48 Unfortunately, this was not the end
of Mr. Doe's legal troubles. In 1990, he was charged with grand theft auto. 149 He was
a passenger in his friend's vehicle, but did not know the vehicle was stolen at the time,
and was charged as an accomplice. 150 In 1990, Mr. Doe was also charged and
convicted of second-degree burglary. 151 While with friends, Mr. Doe stole several
drinks from a local bar.' 52 After these two instances, Mr. Doe was found to be
deportable and was removed from the United States. 53 He re-entered illegally several
54
months later. 1
55
In 1991 and 1992, Mr. Doe was once again charged with alien smuggling.
56
Both times, he was trying to smuggle a family member into the United States.
When asked why he returned again to the United States even after being deported, he
stated that he wanted to be an American - he felt like he was an American in his
heart. 157 However, these charges once again brought Mr. Doe under the radar, and in
1993 he was placed in deportation proceedings once more. 58 Soon after his
deportation he re-entered the country again. 159 By this time, Mr. Doe was already
married in the United States and had a daughter who was born in 1992.160 He
explained that this time he re-entered to be with his wife and child.' 61 When asked
about his criminal past, he stated that he wanted to be different for his family; he
wanted to be a better man.162 Since re-entering in 1993, Mr. Doe has held a steady job
and was the sole provider for his wife and child. 163 In 2000, Mr. Doe's second
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Western State Law Review
Vol. 42 #1
daughter was born.164 His wife, and mother of his children, passed away soon after.165
This made him the sole provider for his children. 66 Since 1993, Mr. Doe has steadily
worked seventy hours a week as a busboy to provide for his children. 167 He managed
68
to save enough money to buy a house.'
However, Mr. Doe could not stay in the country due to his prior criminal
charges. On August 1, 2013, ICE went to Mr. Doe's home and placed him in
custody. 169 On August 15, he was deported once more to Mexico. 70 Mr. Doe
explained that he was given the opportunity to speak with the IJ and the judge did ask
about his children.' 7' However, the judge never allowed Mr. Doe to make
arrangements for the care of his children. 72 He managed to make a phone call to a
friend who took the two girls in while he was removed from the country. 73 Mr. Doe
explained that the judge never allowed him to explain his family situation nor that he
was the sole provider for his youngest daughter. 74 When questioned, Mr. Doe also
explained that he did not know what "prosecutorial discretion" was, and that it was
never offered to him in the recent case. 175 Mr. Doe re-entered the country illegally one
last time because he knew his daughter did not have a permanent caretaker in this
country. 176 Mr. Doe should have been offered discretion, but because of his history in
the United States, the IJ did not take his children, who are United States citizens, into
consideration.
Perhaps one of the clearest cases where discretion should have been applied,
but was not, is the case of L.L. L.L. came to this country when he was twenty-yearsold with the hope of having a better life. 77 He heard about the better economic
situation in the United States and hoped to build his own life and be able to provide for
his family in his home country of Peru. 78 L.L. has lived in the United States for
sixteen years and has one United States citizen child, who is nine-years-old. 179
However, in September, 2013, L.L.'s significant other called the local police to report
a charge of domestic abuse. 180 As a result, L.L. was arrested and placed in county jail
for four days.' 8' Later, L.L.'s significant other recanted her story and told officers that
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
175.
176.
177.
178.
179.
180.
181.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
2014
Prosecutorial Discretion in the Immigration Context
she was simply angry at L.L. and did not want to actually press charges. 182 The local
police department dropped the charges against L.L., but L.L. remained in custody
83
because he was undocumented.
L.L. was transferred to various county jails across Orange County, California
before being placed on an Immigration hold. 184 L.L. explains that he and several other
men were brought into a holding room where an Immigration official was asking
questions about each of the person's various situations. 8 5 When it was L.L.'s turn, the
official did ask whether L.L. had any children. 186 L.L. explained that he had one
biological child, and he also takes care of his significant other's two children from a
prior relationship. 187 L.L. and his significant other are the sole providers for the
children. 88 There are no other persons who can care for their children in this
country. 189 L.L. tried to plead his case by explaining that he had no prior criminal
record besides the dropped charges in the current case. 90
However, the official informed L.L. that it would be "better" for him to sign a
voluntary departure form and L.L. refused to do so.' 91 After pleading his case several
more times, the official eventually decided to transfer L.L.'s case to another
supervisor. 92 The supervisor indicated that L.L. was in removal proceedings, but he
was released on his own recognizance. 93 As of date, L.L. was able to obtain one
extension for his removal hearing so that he can obtain an attorney. 94 However,
neither the IJ nor anyone else from the government has expressly considered L.L.'s
case under prosecutorial discretion, despite having the United States citizen child and
95
no prior criminal convictions, so L.L. has not been offered any form of relief.
The cases mention supra were obtained by private interviews with one of the
authors of this article, but, there are several cases that have made national headlines,
such as Neyoy Ruiz's case. In 2011, Neyoy Ruiz was pulled over on the highway for a
smoking tailpipe. 196 At the time, he was unable to provide identification and was
arrested. 97 After his arrest, Neyoy was handed over to Border Patrol. 198 Neyoy had
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Id.
Id.
Id.
Id.
Id.
Interview by Madison Burga with John Doe, supra note 144.
Paul Ingram, Neyoy Ruiz Remaining in Sanctuary at Tucson Church Until Immigration Case
Closed, TUCSONSENTINEL.COM (May 15, 2014, 10:28 PM), http://www.tucsonsentinel.comlocal/
report/051414-southside-sanctuary/neyoy-ruiz-remaining-sanctuary-tucson-church-until-immigra
tion-case-closed/.
197. Id.
198. Id.
44
Western State Law Review
Vol. 42 #1
lived in the United States for fourteen years and had a United States citizen child. 199
This is the typical case that would qualify for prosecutorial discretion but "an
administrative mistake [ ] allowed the case to go forward and . . . Neyoy was
[eventually] ordered to leave the United States within 60 days.112°° Neyoy signed a
voluntary removal order, but failed to leave in the time specified so the order was
converted to a final order of removal. 20 1 Neyoy's initial lawyer never asked officials
to use discretion to close the case and discretion was never offered. 20 2 Neyoy's
situation is an example of how discretion is still not being applied even after the new
2013 Memo. The case was transferred to another attorney who submitted a letter to an
Immigration official who described the situation as a "slam dunk. ' 20 3 According to
Neyoy's counsel, the case "should have received prosecutorial discretion long ago"
because "he is an ideal candidate for administrative closure. ''204 After Neyoy's case
was publicized, ICE declared that it would "exercise prosecutorial discretion by not
taking immediate action on [Neyoy's] removal order. ' 20 5 However, ICE did not
declare that the case would be administratively closed. 20 6 Although Neyoy was
eventually offered some form of discretion, the fact that it was never offered or argued
demonstrates that even under the 2013 Memo the discretion is still not being
universally applied.
2.
Are the Standards Being Actively Applied Correctly and Efficiently?
While ICE did publish several memos concerning prosecutorial discretion, the
standards are not being applied in accordance with the policies set forth in each of the
directives. With the issuance of the Morton Memo, "ICE ...publicly declared that
every officer and attorney within its unit will be trained on prosecutorial discretion by
January 13, 2012."207 The decision of whether to exercise prosecutorial discretion is
initially made by ICE attorneys. 2 8 ICE continued to explain the IJ must still be
199. See id.
200. Paul Ingram, Tuscon Church Gives Sanctuary to Undocumented Man, Family, TUCSONSIrNTINEL
.COM (May 14, 2014, 12:09 AM), http://www.tucsonsentinel.com/local/report/051314_southside_
sanctuary/tucson-church-gives-sanctuary-undocumented-man-family/.
201. See Ingram, supra note 199.
202. See id.
203. See id.
204. Id.
205. See Davis laconangelo, Mexican Undocumented Immigrant Daniel Neyoy Ruiz Seeks Shelter from
Deportationin Arizona Church, LATIN TIMLs (May 19, 2014, 3:19 PM), http://www.latintimes.coml
mexican-undocumented-immigrant-daniel-neyoy-ruiz-seeks-sheiter-deportation-arizona-church- 174
564.
206. See generally Stefanie Boe, Grijalva Visits Man Seeking Sanctuary at Local Church, KVOA.coM
(May 23, 2014, 11:38 PM), http://www.kvoa.com/news/gfijalva-visits-man-seeling-sanctuary-atlocal-church/ (discussing that Neyoy now has the support of Congressman Raul Grijalva, the
Congressman is "seeking a favorable intervention by the Obama administration to stop the
deportation of Neyoy," and the Congressman sent a letter to the White House adviser, Cecilia
Munoz).
207. Wadhia, supra note 24, at 5.
208. EOIR Statement Regarding ProsecutorialDiscretion,U.S. DEPARTMENT OF JUST. (Nov. 17, 2011),
http://www.justice.gov/eoir/press/201 l/EOIRProsecutorialDiscretion] 1172011 .htm.
45
Prosecutorial Discretion in the Immigration Context
2014
prepared to "adjudicate motions on a case-by-case basis as they are filed with the
court, including motions to administratively close or terminate cases. ' 20 9 ICE made
clear that its task force would in fact be educated on the use of discretion in
deportation proceedings. However, this is not the case. An in-depth analysis of
millions of deportation records since the federal government's launch of "prosecutorial
discretion" shows that there has not been any increase in the use of discretion against
low-priority targets and the focus is not actually shifting to the priority targets-"noncitizens who have committed crimes other than minor violations."'2 10 After all, "ICE
claims that 98 percent of the individuals it removed last year fell within its priorities
for civil immigration enforcement, yet over 40 percent of those removed have no
criminal background whatsoever."2 1'
Only a small fraction of those actually being detained are being offered the
benefit of prosecutorial discretion. For example, in 2012, ICE statistics revealed that
"20,608 out of the 232,181 nondetained cases reviewed by DHS have been 'offered'
prosecutorial discretion. ' 212 According to these figures, discretion is only being offered
in less than nine percent of all cases. This only includes offering discretion, not
actually closing a case based on discretion. Among these figures, only 4,363 cases
have been administratively closed or dismissed based on the use of prosecutorial
discretion. 2 13 This means that in 2012, prosecutorial discretion was only effective in
less than two percent of all the cases. Perhaps more troubling is that "204,810 parents
of U.S.-citizen children were removed from the U.S. between July 1, 2010 and
September 31, 2012, accounting for nearly 23 percent of all individuals deported
'2 14
during that period.
The numbers described supra seem fairly small, compared to the leeway given
to ICE officials under prosecutorial discretion. The figures did seem slightly more
promising for the 2013 fiscal year. In 2013, approximately eight percent of cases were
closed as a result of "prosecutorial discretion. ' 21s However, as of February 28, 2014,
209. Id.
210. See Diane Solis, Secure Communities of Federal Immigration Agency Under Lens Again,
DALLASNEWS (Apr. 8, 2014, 1:04 PM), http://thescoopblog.dallasnews.com/2014/04/secure-commu
nities-of-federal-immigration-agency-under-lens-again.html/.
211. AM. IMMIGRATION LAWYERS ASSN, AILA's RECOMMENDATIONS
TO
DHS
ON ENFORCEMENT
1
(2014), availableat http://www.aila.org/content/default.aspx?docid=479 10; see also ICE Announces
FY 2013 Removal Numbers, U.S. IMMIGR. & CUSTOMS ENFORCEMENT (Dec. 19, 2013), https://www
.ice.gov/news/releases/I 312/131219washingtondc.htm ("98 percent of removals met one or more of
the agency's civil immigration enforcement priorities. These figures highlight ICE's ongoing
commitment to primary immigration enforcement missions: the apprehension of criminal aliens and
other immigration violators in the interior of the United States; and the detention and removal of
individuals apprehended by ICE and U.S. Customs and Border Protection (CBP) while attempting to
unlawfully enter the United States.").
212. Wadhia, supra note 42, at 3.
213. Id.
214. Falling Through the Cracks, IMMIGR. POL'Y CENTER (Dec. 12, 2012), http://www.immigrationpoli
cy.org/just-facts/falling-through-cracks (alteration in original) (indicating that this figure is up
dramatically from previous years; for example, in the 10 year period between 1997 and 2007 about
108,000 parents of U.S. citizen children were removed).
215. Cindy Chang, ProsecutorialDiscretion on the Rise in Immigration Courts, Los
(Jan.
15,
2014),
ANGELES
TIMES
http://articles.latimes.com/201l4/jan/I5/local/la-me-ln-prosecutorial-discretion-
Western State Law Review
Vol. 42 #1
the numbers declined once more. Approximately seven percent of the 470,521 cases
were actually closed based on prosecutorial discretion. 2 16
A major issue arising from the use of such discretion is that ICE officials have
publicly said that "they don't keep track" of the actual cases that are closed based on
prosecutorial discretion.2 17 Rather, all data relied on comes from the Transactional
Records Access Center at Syracuse University. 21 8 The fact that ICE claims it does not
keep track is an issue in itself because it makes it almost impossible to implement a
procedure that is given the same weight throughout the jurisdictions. If the officials do
not keep track of how discretion is enforced, it is difficult to know if the standard is
219
even being used properly.
III.
OPPOSITION TO THE USE OF DISCRETION
Prosecutorial discretion in the Immigration context has always been fairly
controversial. 220 Practically speaking, the use of prosecutorial discretion by ICE agents
reduces the workload of IJs and provides relief to many people living peacefully in the
United States. 221 However opponents of prosecutorial discretion argue that President
216.
217.
218.
219.
220.
221.
immigration-20140115 (indicating that immigrants are "increasingly likely to have their cases
dismissed because of mitigating factors such as having U.S. citizen children"; however, this does
not seem accurate since there has only been a marginal increase in the effective use of discretion
since 2012). But see ProsecutorialDiscretion Rarely Used in Immigration Cases in U.S., LATIN AM.
HERALD TRIB., http://www.laht.com/article.aspArticleld=2036146&Categoryld=36641 (last visited
Dec. 29, 2014) ("Other immigration courts, like those in Tucson and Seattle, have a [prosecutorial
discretion] closure rate of 30 percent over the past 18 months .... ").
See Immigration Court Cases Closed Based on ProsecutorialDiscretion, TRAC IMMIGR. (Mar. 20,
2014), http://trac.syr.edu/immigration/prosdiscretion/ (showing that the figures are even lower in
some jurisdictions; for example, in the Adelanto jurisdiction 0% of cases were closed based on
prosecutorial discretion while, surprisingly, Tuscon had the highest rate of closures with 30.5%); see
also Ley, supra note 33 (indicating that in the Las Vegas jurisdiction only about three percent of
cases were closed because of prosecutorial discretion between October 2012 and March 2013).
See Dianne Solis, U.S. Immigration Enforcement's 'ProsecutorialDiscretion' History Dates to John
Lennon, DALLASNEwS (Oct. 6, 2013, 11:36 PM), http://www.dallasnews.com/news/metro/20131006u.s.-immigration-enforcements-prosecutorial-discretion-history-dates-back-to-john-ennon.ece.
See id.
See generally Elise Foley, Here's What Obama Can Actually Do to Slow Deportations, HUI:PINGTON
POST (Mar. 20, 2014, 7:34 AM), http:/www.huffingtonpost.com/2014/03/20/obama-deportationreview n_4993249.html ("Customs and Border Protection has opaque policies, making it tough to
know whether the agency is using prosecutorial discretion. If it isn't, or isn't doing it well, more
protections within CBP and overall border enforcement could make a big difference.").
See, e.g., Dinan, supra note 104 ("'President Obama has once again abused his authority and
unilaterally refused to enforce our current immigration laws by directing U.S. Immigration and
Customs Enforcement agents to stop removing broad categories of unlawful immigrants,' said
House Judiciary Committee Chairman Bob Goodlatte, Virginia Republican.").
See generally Ley, supra note 33 (indicating that the use of discretion would lessen the Immigration
Judge's workload). For example, the entire system of law enforcement is run with prosecutorial
discretion which means citizens are never prosecuted for some crimes. Id. There is just not enough
money "for the police and the prosecutors and the court system and jails and prisons, so one
prioritizes." Id. The same idea is used in the immigration context by allowing officials to exercise
their discretion and prioritize which cases should be brought and which should be closed.
Practically, using discretion lessens the judge's workload.
2014
Prosecutorial Discretion in the Immigration Context
Obama is attempting to bypass the legislative branch and make what should be a
222
congressional debate a political issue.
[Congressman] Goodlatte, whose committee is in charge of many of
the immigration bills the House could consider this year and who is
working on a legalization bill for young illegal immigrants, said the
Obama administration's move "poisons the debate" and shows that the
president is trying to "politicize the issue" rather than work for a
22 3
compromise bill.
The argument is that if the President wanted change, he should go through Congress to
reform the Immigration and Nationality Act itself. Opponents argue that the use of
prosecutorial discretion is essentially the President ignoring the law, and each time he
does so it creates the impression that if Congress implements Immigration reform, the
President cannot be trusted to enforce
it.224
However, the President is actually enforcing the laws. A recent study by the
Migration Policy Institute revealed that:
An increasing share of people are deported through formal removals
(preventing them from returning legally on a visa and if they try to reenter illegally, they face prison time.)[;] [a]n increasing share of
people are formally removed through the Department of Homeland
Security and not a judicial process[;] [and] [a]n increasing share of
225
people apprehended at the border face charges.
The Migration Policy Institute study indicates that the Obama administration has
increased the amount of Immigration enforcement at the border while refocusing the
interior enforcement by "[p]ut[ting] in place prosecutorial discretion policies aimed at
focusing enforcement on criminals. '226 The Obama Administration is enforcing
Immigration laws and has merely shifted the focus from interior enforcement to
increased enforcement at the border. The shift in enforcement demonstrates that the
argument the President is not enforcing the laws is not supported.
Additionally, some opponents of the use of prosecutorial discretion argue that
discretion is purely a political act. One argument is based on party lines: "'[t]his is
222. See Dinan, supra note 104; see also Pete Kasperowicz, DHS Secretary: Congress Can't
'Micromanage' the Obama Administration on Immigration, BLAZE (May 29, 2014, 1:45 PM), http://
www.theblaze.com/stories/2014/05129/dhs-secretary-congress-cant-micromanage-the-obama-admini
stration-on-immigration /("[prosecutorial discretion] is seen by Republicans as an attempt by the
president to weaken immigration laws on his own, after having failed to get this result
legislatively.") "'The beneficiaries include many thousands of aliens who have been arrested by
state and local law enforcement or convicted criminals who have been put in removal proceedings
and who DHS simply has let back onto our streets."' Id. (quoting Judicial Committee Chairman Bob
Goodlatte).
223. Dinan, supra note 104 (quoting Congressman Bob Goodlatte, Virginia Republican).
224. See Halimah Abdullah, Should Obama Use the Power of His Pen to Turn the Tide on Immigration
Reform?, CNN (Apr. 15, 2014, 1:51 PM), http://www.cnn.comI2014/04/l5/politics/immigration-
executive-action/index.html.
225. Suzanne Gamboa, Can You Trust Obama to Police Immigration? Report: Yes You Can, NBCN.ws
(Apr. 29, 2014, 1:35 PM), http://www.nbcnews.com/news/latino/can-you-trust-obama-police-
immigration-report-yes-you-can-n92796.
226. See id.
Western State Law Review
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about Democrats trying to document the undocumented so that they are documented
Democrats that can vote ...That's their calculus. It's long been their calculus-it
goes back at least two decades-and it is a naked political maneuver.' "227 Those who
become citizens through legal means are not proponents of amnesty because they are
law-abiding citizens; therefore, the President and other Democrats are using
prosecutorial discretion to increase their own voting pool.2 28 Although this has been
an attack against the use of discretion, there has been no formal indication that this is
the sole driving force behind the movement.
Although no one argues that prosecutorial discretion is not within the
President's authority, opponents do argue that the President has exceeded his legal
authority by "exempt[ing] broad classes of people here illegally from federal
deportation laws. ' 229 The opponents claim "'the Obama administration has stretched
prosecutorial discretion beyond all recognition.' "230 A group of ICE agents are
actually suing the Obama administration to halt the extension of the discretion. 231 The
agents' claim is that prosecutorial discretion is making it impossible for the agents to
do their job because the agents "are required by law to deport people they encounter
who were in the country illegally, but their superiors are telling them not to based on
the principles laid out by Homeland Security leadership. ' 232 The agents' claim was
found colorable but was dismissed for lack of jurisdiction. 23 3 The agents are currently
234
appealing the decision.
Opponents also argue that prosecutorial discretion is simply a form of backdoor amnesty. To combat the use of the discretion, Congress proposed the
"Prohibiting Back-door Amnesty Act" which would "prohibit the implementation of
certain policies regarding the exercise of prosecutorial discretion by the Secretary of
Homeland Security. '235 Representative Benjamin Quayle, an Arizona Republican,
introduced the Act to the House of Representatives on June 18, 2012.236 On June 28,
2012, the bill was referred to a subcommittee and no additional action has been
taken. 237 Although both the lawsuit and the Act failed, these actions demonstrate that
the use of prosecutorial discretion is not well received by ICE agents or by Congress.
Instead of withdrawing the use of discretion, the Obama administration expanded the
use of the discretion with the latest 2013 Memo. Additionally, in response to the
227. Democrats Press Obama to Take Executive Action on Immigration, PRIEssTV (May 23, 2014, 12:15
PM), http://www.presstv.ir/detai1/2014/05/23/363833/democrats-press-obama-on-immigrationreform/ (quoting Representative Stephen King, Iowa Republican).
228. See id.
229. See Alan Gomes, Obama 'Humane' OrderRoils Immigration Debate, USA ToDAY (Mar. 23, 2014,
1:32 PM), http://www.usatoday.com/story/news/world/2014/03/23/immigration-obama-deportationreview/6529849/.
230. See Solis, supra note 220 (quoting Kris Kobach, a lawyer and Kansas secretary of state).
231. See Gomes, supra note 232.
232. Id.
233. See id.
234. See id.
235. Prohibiting Back-door Amnesty Act, H.R. 5953, 112th Cong. (2012).
236. See id.
237. See id.
2014
Prosecutorial Discretion in the Immigration Context
49
argument that prosecutorial discretion is a form of backdoor amnesty, Homeland
Security Secretary Jeh Johnson said, "Itihe notion of prosecutorial discretion should
not be controversial, nor should it be mistaken for any type of amnesty, which some
people like to call it. It's not amnesty, it's simply focusing your resources. ' 23 8 In
response to the charge that prosecutorial discretion is back-door amnesty, the
Homeland Security Secretary simply said it is a way to better use resources and is not
a path to citizenship.
The final argument against prosecutorial discretion is simply that discretion
does not work. Critics point to "[a] think tank that favors strict immigration
enforcement [which] said it obtained an internal Department of Homeland Security
document showing that 68,000 undocumented immigrants with criminal records were
released from detention instead of being deported. '23 9 The point of prosecutorial
discretion is to prioritize immigrants and allow those without criminal records to stay
in the country. However, the report claims that undocumented immigrants with
criminal records are being released, "many of them in New York and New Jersey, ' "0
indicating that the policy does not work. Although the policy behind prosecutorial
discretion was to target high priority individuals, "'[t]hese figures suggest that despite
claims of a focus on public safety, the administration's prosecutorial discretion criteria
are allowing factors such as family relationships, political considerations, or attention
from advocacy groups to trump criminal convictions as a factor leading to
deportation.' ,,241 An internal report that was released by ICE indicated that 36,007
immigrants with criminal records were released from custody and among them people
with "193 homicide convictions, 426 sexual assault convictions, 9,187 dangerous drug
242
convictions, and 16,070 drunk or drugged driving convictions" were also released.
In response to these figures, Donald Trump said on Twitter that the government was
"highly incompetent" and "so stupid" as to allow people with criminal convictions to
go free. 24 3 However, a simple change in the administration could ensure that
undocumented aliens with criminal convictions go forth with deportation proceedings
238. See Julia Edwards & Jeff Mason, Politics Won't Drive U.S. Deportation Review, Security Chief
Says, REUTERS, May 13, 2014 (internal quotation marks omitted), available at http://www.reuters
.com/article/2014/05/13/us-usa-immigration-deportation- idUSBREA4C 10120140513.
239. Think Tank Says DHS Releases Criminal Immigrants, but Critics Counter Numbers Are Skewed,
Fox NEWS LATINO (Mar. 31, 2014), http://latino.foxnews.com/latino/politics/2014/03/31/think-tanksays-dhs-releases-criminal-immigrants-but-critics-counter-numbers/.
240. Bob Fredericks, 68K Undocumented Immigrants with Criminal Records Released in 2013: Report,
Niw YORK POST (March 31, 2014, 10:12 AM), http://nypost.com/2014/03/31/68k-undocumentedimmigrants-with-criminal-records-released-in-2013-report/.
241. Id. (quoting the report written by Center for Immigration Studies Director of Policy Studies Jessica
Vaughan).
242. Melissa Clyne, Trump Blasts Release of Illegal Immigrant Felons, NEWSMAX (May 20, 2014, 9:43
AM), http://www.newsmax.com/Newsfront/Trump-immigration-felons-ICE/201 4/05/20/id/572302/;
see also Lou Barletta, The Day Immigration Reform Died, STANDARDSPEAKER.COM (May 24, 2014),
(expressing that many
http://standardspeaker.com/the-day-immigration-reform-died-1.1691501
criminals were the people who were released into the "neighborhoods of America"). "This should be
appalling to anyone who cares about the rule of law or public safety." Id. President Obama's "drive
to grant amnesty" is not "based on public safety or adherence to the current law." Id. Such leniency
should not be granted while the current laws "are so flagrantly and willfully ignored." Id.
243. Clyne, supra note 245.
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while low priority immigrants are released from detention and allowed to live their
lives.
IV.
WHY A CHANGE IN ENFORCEMENT WAS NEEDED
The enforcement of prosecutorial discretion needed to be modified because the
deportation of parents results in increased placement in foster care, psychological
trauma, economic hardship, and Congress is simply not willing to pass any other type
of reform. Currently, the Immigration system is faced with more than 350,000
cases. 244 While the 2011 Morton Memo was meant to switch the focus of enforcement
to high-level criminals, ICE officials are still focusing on traffic stops and minor
crimes. 245 This focus will inevitably result in parents being caught up in the system a parent of a United States citizen child could be stopped for a traffic violation and
find him or herself in deportation proceedings. 246 Since the policies underlying both
the 2011 and 2013 Memos are not being effectively utilized, there needs to be some
type of change. 247 The use of "prosecutorial discretion should not be controversial"
2 48
because it is simply a way to focus limited resources.
A.
Increased Placement in Foster Care
Clara's eldest kid was 6 years old and her youngest just a year old
when it happened. Josefina's baby was 9 months. All three children
were ripped from their mothers and sent to live in foster homes with
strangers. Clara and Josefina, sisters in their early 30s who lived
together in a small northern New Mexico town, had done nothing to
harm their children or to elicit the attention of the child welfare
department. Yet one morning last year, their family was shattered
when federal immigration authorities detained both sisters. Clara and
244. McClatchy Tribune, Minn. Judges Face a 3,000-Case Backlog, ALBERT LEA TRIL. (Mar. 30, 2014,
6:00 AM), http://www.albertleatribune.com/2014/03/minn-judges-face-a-3000-case-backlog/.
245. See id. ("U.S. Immigration and Customs Enforcement director John Morton told immigration
officials in 2011 to focus their enforcement efforts on high-level criminals. But attorney Kim
Hunter, who volunteers with the Minnesota Detention Project to screen immigrants who have been
detained, said ICE officials are still pressing ahead on traffic stops and minor crimes.").
246. See, e.g., O'Reilly, supra note 10.
247. See generally Letter from Most Reverend Eusebio Elizondo, Auxiliary Bishop, Seattle, & Chairman,
USCCB Comm. on Migration, to Jeh Johnson, Sec'y, Dep't of Homeland Sec. (Mar. 26, 2014),
available at http://www.washingtonpost.conmr/2010-2019/WashingtonPost/2014/03/31/EditorialOpinion/Graphics/1717%20DHSenforce.pdf (evidencing that Reverend Eusebio Elizondo wrote a
letter to DHS on why this country needs reform). He wrote, "as pastors who witness the human
consequences of our broken immigration system every day, we are deeply troubled by the division
of families caused by current immigration enforcement policies. In this regard, we urge you to take
steps within your authority to limit these deportations in a way that protects immigrants who are no
threat to the community and who might otherwise benefit from immigration reform legislation, and
their families." Id.
248. Edwards & Mason, supra note 241.
2014
Prosecutorial Discretion in the Immigration Context
months later. For a year, they had no
Josefina were deported four
249
contact with their children.
Deportation of parents results in an increased placement of the children in
foster care. When a parent is detained, the minor child has to be placed in some type of
care-whether placement is with a relative or in protective services. In many cases,
the parent does not have the opportunity to make any of these arrangements because
"it can be extremely difficult to remain in contact with a child. '250 This often results in
an increase in the amount of children who are placed in foster care.25 1 When no
relative can be readily identified, the child is placed in state custody and eventually
finds him or herself in a foster home. 252 In fact, "there are at least 5,100 children
253
currently living in foster care whose parents have been either detained or deported."
If prosecutorial discretion were being used in more cases and at the forefront of the
investigation, these numbers would decrease.254 The children would be able to stay
with their parents instead of being placed in the foster care system.
When the child is placed in foster care at the forefront of the event, the effects
do not end there. Even if the parent manages to be released from detention, "it can be
difficult, if not impossible, to locate and reunite with their children at the conclusion of
their immigration case. '255 Once the child is located, reuniting is not automatic. The
parent must comply with a reunification plan. 256 Such a plan includes regular phone
calls and supervised contact visits.2 57 This means the child remains in the foster care
system even longer. This is an important factor to consider. After all, "[t]he total
249. Seth Freed Wessler, Thousands of Kids Lost from Parents in U.S. Deportation System, COLORLNIS
(Nov. 2, 2011, 8:00 AM), http://colorlines.com/archives/201 I 1/thousands of kids lost in foster_
homes-afterparents-deportation.html.
250. See EMILY BUTERA, WOMEN'S REFUGEE COMM'N, TORN APART BY IMMIGRATION ENFORCEMENT:
PARENTAL RIGHTS AND IMMIGRATION DETENTION 2 (2010), available at womensrefugeecommission
.org/resources/downloadl/667; see also SETH FREIED WESSILER, APPLIEI) RESEARCH CTR., SHATTEREI)
FAMILIS: THIS PERILOUS
251.
252.
253.
254.
INTERSECTION OF IMMIGRATION ENFORCEMENT AND THE CHILD WELFARE
SYSTEM 5 (2011), available at http://act.colorlines.com/acton/ attachment/] 069/f-007a/O/-/-/-/-/file
.pdf (indicating that the child will not be allowed to go with another undocumented relative because
he or she may be deported at any time as well).
See Solis, supra note 220 (discussing that there is a need to decrease the number of kids who are
placed in foster care).
See Nina Rabin, DisappearingParents: Immigration Enforcement and the Child Welfare System, 44
CONN. L. RiV. 99, 105 (2011).
WESSLER,supra note 253, at 4.
But see 90 NO. 33 Interpreter Releases 1775, 1776 (Sept. 2, 2013) (explaining that the new 2013
directive does direct officials to allow for parents to make arrangements for their children).
"[Officials should] accommodate, to the extent practicable, the detained parent or legal guardian's
individual efforts to make provisions for his or her minor children. Such provisions may include the
parent or legal guardian's attempt to arrange guardianship for his or her minor children to remain in
the U.S." Id. However, it is not readily apparent that these procedures are completely in effect as of
date. The discussion on welfare is still relevant.
255. BUTERA, supra note 253, at 1;see also Judge Places Illegal Immigrant's Child in Foster Care, abc2
News (Feb. 2, 2012, 5:53 AM), http://www.abc2news.com/homepage-showcase/judge-placesillegal-immigrants-child-in-foster-care (exemplifying how immigrants also face hardships in other
ways). A mother's parental rights were terminated because she was undocumented. Id. The judged
ruled that her "lifestyle" of being undocumented meant she could not provide stability for her child.
Id.
256. See BUTERA, supra note 253, at 2.
257. Id.
52
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Vol. 42 #1
costs to foster each child (between administrative and maintenance costs) are
'258
significant - close to $26,000 per year.
Additionally, there is a disconnect between child welfare programs and ICE. 259
Although family preservation is a general goal of child welfare, when it comes to
mixed families of immigrant parents and non-immigrant children there is a "tendency
to backfire causing havoc on thousands of mix[ed]-status families." 260 Under the
current enforcement of the 2013 Memo, the parent does not need to present a risk to
the child before he or she is removed, instead, detainment and deportation alone is
enough to cause removal of the child. 261 Although the 2013 Memo does require the
ICE agent to consider the parental status of the known parents in removal and requires
efforts to ensure that they are placed in a location near their children, this policy has
only been sporadically applied and children are still being left to the foster care
system .262
B.
Psychological and Emotional Impact
"Two years ago, Immigration [officials] came to look for someone in
our house; someone who did not live [there]. . .it was very difficult
impact that it caused for my children. . .my youngest son's
performance in school suffered... [he became] fearful of everything,
when somebody knocked on the door he would react in a very angry,
nervous manner... he became constantly nervous, angry, he couldn't
fall asleep, irritated... The manner in which Immigration came to my
house was very unpleasant. They were using very strong language...
One day [the children] will have to forget it, but I think that a lot of
time will have to go by...
-Isabella, an undocumented mother of three. 263
Perhaps one of the most important reasons to change how discretion is applied
is the effect that deportation has on the United States citizen children who are being
left behind when their parents are deported. 264 Across this nation, "an estimated 4.5
million children who are U.S. citizens by birth live in families where one or more of
258.
JOANNA DREBY, CTR. FOR AM. PROGRESS, How ToDAY'S IMMIGRATION ENFORCEMENT POLICIES
IMPACT CHILDREN, FAMILIES, AND COMMUNITIES 2 (2012), available at www.americanprogress.org/
wp-content/uploads/2012/08/DrebylmmigrationFamiliesFINAL.pdf.
259. See Stephanie Pinsky, ICE's New Policy on Protecting ParentalRights, Soc. WORK HELPER (May
5, 2014), http://www.socialworkhelper.com/2014/05/12/ices-new-policy-protecting-parental-rights/.
260. Id.
261. See id.
262. See id.
263. Family Unity, Family Health: An Inquiry on Federal Immigration Policy, HUM. IMPACT PARTNERS,
http://www.humanimpact.org/projects/hia-case-stories/family-unity-family-health-an-inquiry-on-
federal-immigration-policy/ (last visited Dec. 29, 2014).
264. See id. Another major argument for change concerns judicial economy. With over 350,000 pending
cases, prosecutorial discretion can result in administratively closing a large portion of these cases
which will lead to a decrease of workload on the immigration officials. However, this is beyond the
scope of this article.
2014
Prosecutorial Discretion in the Immigration Context
their parents are undocumented. 2 65 In 2012, "an estimated 150,000 U.S.-citizen
children had a parent deported. ' 266 This does lead to a vast array of emotional
trauma.
267
When a parent is deported, the child more often than not experiences some
form of emotional trauma. Children "live with anxiety about the future, fearful that
arrest, detention or deportation will tear their families apart. '268 These children have
been reported to suffer from "mental health issues, symptoms of post-traumatic stress
disorder, [and] lower use of health care. '269 These children experience behavioral
problems, "such as aggression, anxiety and withdrawal, which can lead to poor school
performance and poor development. ' 270 Separation can also cause an exacerbation of
27 1
any current mental health problems, such as depressive or anxiety disorders.
Children are also reported to be afraid "all or most of the time. '272 They live
in fear of separation-they have a fear "for their own families based on the knowledge
that they could be separated at a moment's notice. '273 This constant fear also leads to
conflict with the local police. 274 Children are reported to "grow up afraid of the
2 75
police" due to the constant fear they face at the possibility of being deported.
These effects generally apply to approximately one-third of the children who
have a parent deported. 276 Among these children, a study showed that about "100,000
U.S.-citizen children will show signs of withdrawal after a parent's arrest. '277 The
2013 Memo was directed towards remedying the negative consequences towards the
United States citizen children. However, when discretion is so rarely being used, the
children will continue to suffer these same consequences.
265.
SARA SATINSKY ET AL.., HUMAN IMPACT PARTNtLRS, FAMILY UNITY, FAMIILy HEALTH:
How
FAMILY-
FOCUSED IMMIGRATION REFORM WILL MEAN BETTER HEALTH FOR CHILDREN AND FAMIuInS, at
i
(2013).
266. Michael Alison Chandler, Deportations of Parents Can Cast the Lives of U.S.-Citizen Kids into
Turmoil, WASH. POST (Dec. 29, 2013), http://www.washingtonpost.comlocal/education/deporta
tions-of-parents-can-cast-the-lives-of-us-citizen-kids-into-turmoil/2013/12/29/abdf23aa-6b4c- I I e3b405-7e360f7e9fd2_-story.html (discussing a study performed by the Human impact Partners, which
is a health advocacy group).
267. See generally SATINSKY, supra note 268 (discussing the impact that deportation can have on a child,
including mental and physical effects).
268. Id. at i.
269. Id. at ii.
270. Id.
271. Advincula, supra note 106.
272. See
SATINSKY,
supra note 268, at ii.
273. DREBY, supra note 261, at 2.
274. Id. at 3.
275. See id.
276. See generally SATINSKY, supra note 268, at ii ("An estimated 43,000 U.S.-citizen children will
experience a decline in their health status after the change in household income associated with the
absence of a primary earner."). Among the approximate 150,000 children who have had a parent
This is approximately onedeported in 2012, 43,000 children suffer adverse effects. See id. at i-ii.
third of the 150,000 children.
277. Id. at ii.
Western State Law Review
C.
Vol. 42 #1
Economic Impact on Children
Another impact that deportation has on these children includes a financial one.
These United States citizen children will reportedly "finish fewer years of school and
face challenges focusing on their studies" as a result of their parents' deportation. 278
This causes a chain reaction. If the child is unable to obtain an education, his or her
earning capacity diminishes. This diminished earning capacity will affect the child for
the rest of his or her life.
These children face an increased risk of poverty when their parents are
deported. Even before detention or deportation, these families "constitute a class of
low-wage workers. ' 279 With deportation, the family can easily slip into poverty.2 80
For example, after the parents are deported, the median household income "overall
will drop to an estimated $15,400, putting them below the poverty line."'28' This
means that more than 83,000 households in the United States that include United
States citizen children will be at risk of poverty. 282 Along these lines, "over 125,000
children will live in a food insufficient household. '283 This not only places a strain on
the children but on the economy because without sufficient food these children will
become wards of the state.
D.
Congress Will Not Pass Reform
Finally, Congress is simply not willing to pass any type of reform, which
would remedy these problems. One of the primary arguments against prosecutorial
discretion is that the President is taking power away from Congress. On June 27,
2013, the Senate passed a new bill for comprehensive Immigration reform. 284 This bill
included several different proposals including increased border security, changes in the
visa system, and a proposal that authorized the Secretary of State, to grant an illegal
alien permanent resident status, assuming the alien is one:
Who: (1)meets specified eligibility requirements, (2) applies before
the end of the application period, (3) has paid the required fee and
penalty if applicable, and (4) has been physically present in the United
States since December 31, 2011, and maintains such presence until
285
[permanent resident] status has been granted.
278. See id.
supra note 261, at 17.
Id.
See SATINSKY, supra note 268, at ii.
See id.
Id.
See CONG. RESEARCH SERV., S.744 BILL SUMMARY AND STATUS (2013), available at http://
thomas.loc.gov/cgi-bin/bdquery/z?d 113:SN00744: @@ @D&summ2=m&.
285. Id.
279.
280.
281.
282.
283.
284.
DREBY,
2014
Prosecutorial Discretion in the Immigration Context
This proposal is ideal for the eleven million aliens present in the United States 86 and
offers a path to citizenship. However, to be put into law it must also pass the House of
Representatives where it currently is being discussed.
This Bill was introduced to the House of Representatives on October 2,
2013287 and eight months later it is still being debated in the House with no end in
sight. President Obama gave Speaker of the House John Boehner a deadline until the
end of summer, 2014, to act, but the House Republicans continue to argue that they
will not pass comprehensive Immigration reform unless they are assured that the
President will uphold the law. 288 With the deadline in place and states taking action on
their own, some felt that Immigration reform would pass. 289 The other theory is the
lingering threat that if Immigration reform does not pass by 2016 the Republicans will
not stand a chance in the 2016 Presidential race because they will lose the Latino
vote.290 Although threats of losing the presidency and Whitehouse deadlines are
present, the date of the passage of reform remains a mystery.
In addition, House Speaker John Boehner has said that he is for Immigration
reform but he will be unable to convince the Republicans who are preventing the bill
from passing because they do not trust President Obama to uphold the laws. 29 1 With
the Speaker unable to convince the Republican-run House, 292 it is unlikely that reform
293
will meet the President's deadline.
Despite the threats in place and an election on the horizon, Immigration reform
was not passed.2 9 4 In a speech before the House, Representative Louie Gohmert, a
Republican from Texas, said,
"When legal status and amnesty is talked about here in Washington, it
becomes a magnet and draws people in. And for all of the children
that are drawn in illegally, you know that some get sucked into sex
slavery. Because of the talk of amnesty in this town and because we
do not have a secure border, then this administration, and this
286. See Dinan, supra note 104.
287. See Border Security, Economic Opportunity, and Immigration Modernization Act, H.R. 15, 113th
Cong. (2013).
288. See Brett Logiurato, Obama Gives Boehner One Last Deadline for Immigration Reform, Bus.
INSI)ER (May 28, 2014, 10:00 AM), http://www.businessinsider.com/immigration-reform-obamaboehner-deportation-policy-house-2014-5.
289. See, e.g., Margery Eagan, Eagan: Immigration Reform War Will Be Won, BOSTONHERAI.D.COM
(May 25, 2014), http://bostonherald.com/news-opinion/columnists/margery-eagan/2014/05/eaganimmigration-reform war will be won.
290. See id.
291. See Stephen Dinan, Boehner's Mixed Messages on Immigration Reform: Blames Fellow
Republicans, Then Obama, WASHINGTON TIMEs (May 5, 2014), http://www.washingtontimes.com/
news/2014/may/5/as-key-to-immigration-reform-in-the-hou-573620615/?page=all.
292. See Party Divisions of the House of Representatives, U.S. House OF REI'RI SNTATIVES, http://
history.house.gov/Institution/Party-Divisions/Party-Divisions/ (last visited Dec. 29, 2014).
293. Additionally, no one has stated what the President would have to do to prove he will uphold the law
if Immigration Reform is passed.
294. Thomas Sparrow, Can Obama Pass US Immigration Reform?, BBC NEWS US AND CANADA
(November 5, 2014), http://www.bbc.com/news/world-us-canada-29890300.
Western State Law Review
Congress also,
295
trafficking.
is complicit
in
helping lure people
Vol. 42 #1
into sex
He additionally argued that allowing children into the United States would not
improve the economy because they do not pay taxes. 296 Although John Boehner stands
by his statements that Republicans will not pass the laws because they cannot trust
President Obama, Representative Gohmert's comments demonstrate that some
Republicans are simply unwilling to pass reform if amnesty is involved at all.
The House has yet to vote on the new bill and Speaker John Boehner has the
power to call for a vote and force the House to address the issue. 297 One critic
explained, "'Republicans don't get it. They're going to lose the 2016 election if they
don't move on immigration reform, and they're going to lose again in 2020. They have
a very short memory. They forgot in 2012. They'll remember after 2016."'298 Despite
multiple warnings from the President, the media, and the Hispanic voters, House
Republicans have not moved on the issue and there is no indication that reform will
pass. The only solution at the moment is to make prosecutorial discretion more
accessible to the people who qualify and hope that Immigration reform will be a
permanent solution to a problem affecting millions of people in the United States.
V.
PRESIDENT OBAMA'S RESPONSE TO CONGRESS'S FAILURE
TO PASS REFORM
On November 20, 2014, President Obama announced to the Nation that he
would be expanding the reach of prosecutorial discretion in response to Congress's
failure to pass Immigration reform.2 99 In this speech, the President took the first step
toward Immigration reform stating, "we'll take steps to deal responsibly with the
millions of undocumented immigrants who already live in our country. ' 30 0 The
President stated that the House of Representatives had failed to launch a vote to pass
Immigration reform and that he still believes comprehensive Immigration reform
through Congress is the best solution, "[b]ut until that happens, there are actions [the
President has] legal authority to take as President . . . that will help make our
immigration system more fair and more just. '30 ' This speech marked a new step
295. Roque Planas, Republican Argues Immigration Reform Debate Leads to Child Sex Trafficking,
HUFFINGTON POST (May 22, 2014, 12:59 PM), http://www.huffingtonpost.com/2014/05/21/louie-
gohmert-children n.5366149.html.
296. See Sparrow supra note 297. (explaining that most economists disagree with this opinion because
eventually they will be taxpaying working adults and will help boost the economy).
297. See Dylan Byers, Anchor with Attitude: Jorge Ramos Fights for Immigration Reform, Poi-rrico
(May 28, 2014, 5:01
AM), http://www.politico.com/story/2014/05/orge-ramos-fusion-politics-
immigration- 107124.html.
298. Id. (quoting news anchorman Jorge Ramos).
299. Fixing The System: President Obama is Taking Action on Immigration,
PRESIDENT
BARACK
OBAMA,
THF
WHITE
HOUSE
http://www.whitehouse.gov/issues/immigration/immigration-action#
(last visited December 31, 2014).
300. President Barack Obama, Remarks by the President in Address to the Nation on Immigration
(November 20, 2014) http://www.whitehouse.gov/issues/immigrationlimmigration-action#.
301. Id.
2014
Prosecutorial Discretion in the Immigration Context
toward a change in the Immigration system for undocumented persons currently living
in the United States.
In response to the President Obama's announcement, Secretary Jeh Johnson
issued a series of memorandums to USCIS.302 In one of the memorandums, Johnson
30 3
outlined the new policy for DACA and for parents of United States citizen children.
In this memorandum DACA was expanded to allow people who were in the United
States by January 1, 2010 who entered before the age of 16 to apply for DACA
regardless of their current age and have deferred action for three years. 304 Further, the
2014 Memorandum outlined a plan for deferred action for parents of United States
citizens or legal permanent residents. 30 5 The 2014 Memorandum allows for
individuals on a "case-by-case basis" to receive deferred action. 30 6 To be eligible the
individual must:
" have, on the date of this memorandum [November 20, 2014], a son
or daughter who is a U.S. citizen or lawful permanent resident;
" have continuously resided in the United States since before January
1, 2010;
• be physically present in the United States on the date of this
memorandum, and at the time of making request for consideration
of deferred action with USCIS;
* have no lawful status on the dates of this memorandum;
• not be an enforcement priority as reflected in the November 20,
2014 Policies for the Apprehension, detention and Removal of
Undocumented Immigrants Memorandum; and
* present no other facts that, in the exercise of discretion, makes the
30 7
grant of deferred action inappropriate.
Under the 2014 memorandum USCIS must begin accepting the applications 180 days
from the time of the issuance of the memorandum. 30 8 This gives USCIS until May of
2015 to begin accepting applications of the parents of United States citizen children
and legal permanent residents who meet the criteria. This timeline has not been
reached, and at the time of the publication of this article the new memorandum had yet
to take effect. Therefore it is uncertain now what the future of this memorandum will
hold.
302. See Fixing Our Broken Immigration System Through Executive Action, DEIARTMENT Ol-HOMI3LANI)
SECURITY,
http://www.dhs.gov/immigration-action (last visited December 31, 2014).
303. See Memorandum from Jeh Charles Johnson Secretary, on Exercising Proseuctorial Discretion with
Respect to Individual who Came to the United States as Children and with Respect to Certain
Individuals Who Are the Parents of U.S. Citizens or Permanent Residents to Leon Rodriguez,
Director U.S. Citizenship and Immigration Services, Thomas S. Winkowski, Acting Director U.S.
Immigration and Customs Enforcement, and R. Gil Kerlikowske, Commissioner U.S. Customs and
Border Protection (November 20, 2014), available at http://www.dhs.gov/sites/default/filesl
publications/14_1120_memodeferred_ action.pdf [hereinafter 2014 Memorandum].
304.
305.
306.
307.
308.
Id. at 3.
Id. at 4.
Id.
Id.
Id.
Western State Law Review
Vol. 42 #1
However, despite its uncertain future, the 2014 Memorandum is already being
met with strong opposition. Homeland Security Chairman Michael McCaul of Texas
said, "[t]hey've taken a sweeping approach to prosecutorial discretion that makes a
mockery of the law. ' 30 9 Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana
Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South
Dakota, Utah, West Virginia, and Wisconsin have all joined to sue members of the
executive branch to stop the President's new program.3t 0 The lawsuit was filed
claiming that the President violated the Take Care clause of the Constitution. 31' To
prove standing, Texas Attorney General Greg Abbott said Texas is "'uniquely
qualified to challenge the president's executive order' because the state had suffered
the brunt of illegal immigration and drug-related cross-border crime. ' 31 2 The outcome
of the lawsuit remains unknown at the time this article went to publication.
This first step made by President Obama will prevent parents of United States
citizen children from being deported if they meet all of the qualifications. However an
executive order may only last as long as the President is in office. This is an effective
short-term solution but it is impossible to tell if the next presidential administration
will continue to effectuate this order.
VI.
PROPOSAL FOR CHANGE
The short-term solution has been implemented by the President in the form of
an extension of DACA, and the long-term solution is large-scale Immigration reform.
Prior to passing the 2014 Memorandums the President receive several
proposals for change. One proposal for change was set out in a letter to President
Obama by The Leadership Conference on Civil and Human Rights, which suggested
building upon prosecutorial discretion by:
1) ensuring the memoranda apply to all of DHS, not just to ICE; 2)
creating a presumption of hardship for people with ties to the country;
3) applying deferred action with work authorization (not just
administrative closure) to compelling cases; 4) giving timeframes for
the grants of discretion, to provide recipients with some stability; 5)
evaluating the use of prosecutorial discretion at each stage of the
enforcement process; 6) treating some requests for prosecutorial
discretion in groups, for example, workers in certain labor situation; 7)
309. Joseph Tanfani, Republicans attack Obama's action on immigration as unconstitutional,LA TIMES
(December 2, 2014 1:03 PM), http://www.latimes.com/nation/politics/politicsnow/la-na-congressimmigration-hearing-20141202-story.html.
310. Francesca Chambers for Mailonline, Texas announces 17-state lawsuit against Obama over
immigration two days before its governor-elect is scheduled to meet the president at the White
House, DAILYMAIL.COM (December 3, 2014 8:40 PM), http://www.dailymail.co.uk/news/article2859766/Texas-announces- 17-state-lawsuit-against-Obama-immigration-two-days-governor-electscheduled-meet-president-White-House.htmi.
311. Id.
312. David Montgomery and Julia Preston, 17 States Suing on Immigration, TnE
NEW YORK
TIMES
(December 3, 2014), http://www.nytimes.com/2014/12/04/us/executive-action-on-immigrationprompts-texas-to-sue.html?_r=0.
2014
Prosecutorial Discretion in the Immigration Context
ensuring agency compliance with memos governing victims and
sensitive location cases; and 8) establishing a review process at DHS
Headquarters. 313 (emphasis added)
The suggested expansion provided for a more uniform enforcement policy.
However, without a combined effort from child welfare and ICE, these goals will not
reach the family nor reduce the amount of children in foster care. 314 The combination
of forces is necessary because ICE is not equipped to determine which children will be
placed in foster care and without ICE, child services would be unaware of parents who
are in deportation proceedings. 315 In the 2014 Memorandum a person may apply for
discretion if they are the parent of a United States citizen child. 31 6 This policy not only
takes into consideration parents of children placed in foster care, but extends to any
parent who meets the criteria. Thus the new policy allows alien parents a chance to
stay with their children. However these parents still face many limitations.
Illegal immigrants are offered a reduced amount of protection in the criminal
system which often leaves them without the option of a trial. 317 The right to a trial is
part of the American system and part of what makes this country free. 31 8 This right
has been denied in the Immigration context and without this right people who are
eligible for relief and discretion will still be deported.3 19 To ensure that discretion and
relief are granted when appropriate, part of the change should afford each person the
right to a speedy trial in front of an IJ to ensure they have a chance at defending their
presence, and have the opportunity to raise any issues that would allow them to stay in
the United States. 320 Even with the addition of the new policy many people may not
understand they qualify for the new Deferred Action program. If they are denied
access to the courts the new program will not protect those who do not face an IJ.
Overall, the temporary solution is prosecutorial discretion as set forth by
President Obama on November 20, 2014. The ultimate solution is comprehensive
Immigration reform, but with the bill being stalled in the House there is no telling
when this will be realized. "The American family remains strong, resilient and
welcoming. Lawful Immigration revitalizes the American spirit. America will remain
313. Letter from Wade Henderson and Nancy Zirkin to President Obama, supra note 94; see also Kevin
Bohn, Some Latino Groups Express Frustrationwith Administration Delay on Immigration Review,
CNN (May 28, 2014, 3:03 PM), http://politicalticker.blogs.cnn.com2014/05/28/some-latino-groups(explaining that several
express-frustration-with-administration-delay-on-immigration-review/
Latino group leaders are also expressing deep disappointment with the Obama Administration for
delaying further changes in deportation policies and the groups argue that Obama must take matters
into consideration and act-not wait for Congress).
314. See Pinsky, supra note 262.
315. See id.
316. See 2014 Memorandum, supra note 306.
317. See Joanne Lin, Speed Over Fairness: Deportation Under the Obama Administration, AM. Civ.
LiBIRTIES UNION (May 1, 2014, 11:18 AM), https://www.aclu.org/blog/immigrants-rights/speed-
over-faimess-deportation-under-obama-administration.
318. See id.
319. See id.
320. See id.
Western State Law Review
Vol. 42 #1
a beacon for all who seek freedom so long as we have the courage to preserve our
32
founding principles." '
Nothing will stop people from entering this country illegally; nothing will stop
them from seeking the American Dream. Nothing will squelch their desire to realize
the promise set forth by the Statue of Liberty. Immigration reform and prosecutorial
discretion place that dream within reach of those who seek it. If Congress refuses to
act, then the President must.
"Give your tired, your poor, [y]our huddled masses yearning to breathe
'322
free.
Without comprehensive Immigration reform, without lasting change, these
words should be removed from the Statue of Liberty, because without them, her
promise to those who hope for a better life, for themselves and their children, are mere
empty words.
321. Robert Neira Tracci, Tracci: Subverting Immigration Laws in the Name of Reform,
WASHINGTON
TIMiES (Apr. 25, 2014), http://www.washingtontimes.com/news/2014/apr/25/tracci-subverting-immi
gration-laws-in-the-name-of-.
322. LAZARUS, supra note 7.