Saturday, 11 September 2010

In US, new discretion guidance provides hope for migrants threatened with removal

Seal of the United States Department of Homela...Source: National Immigrant Justice Center

Recent U.S. Department of Homeland Security (DHS) memos that outline new policies on prosecutorial discretion for immigrants in deportation proceedings will improve efficiency, save taxpayer dollars, and protect human rights.

The August 20 and June 30 memos instruct DHS trial attorneys to exercise discretion in removal proceedings for immigrants who have applications pending with U.S. Customs and Immigration Services (USCIS) and have a strong chance of having their applications approved. The memos also encourage U.S. Immigration and Customs Enforcement (ICE) officers to take certain factors into account when making a decision about whether to detain, including whether the individual suffers from a serious medical condition or is a primary caregiver for young children.

Clearly, these policy shifts are a step in the right direction to provide due process in the immigration system. Widely used in other areas of the U.S. justice system, prosecutorial discretion is applied in the criminal system where prosecutors have discretion as to how they charge an individual accused of a crime. However, for the past several years, ICE has succumbed to political pressure from anti-immigrant groups and has failed to exercise discretion, leading to the prosecution and detention of vulnerable individuals, including pregnant women and the elderly.  The lack of prosecutorial discretion in the immigration system has torn apart families and harmed individuals who have made positive contributions to their communities. For example, spouses and parents of U.S. citizens, including those in the military and thousands of other men and women without criminal histories, have been deported.

The indiscriminate use of deportation has weakened our communities, wasted taxpayer dollars, and overwhelmed the immigration court system, forcing immigration judges to spend more time hearing deportation cases of noncriminal individuals at the expense of asylum seekers and other more complicated cases.  The National Immigrant Justice Center encourages ICE offices across the country to exercise prosecutorial discretion to ensure human rights protections, promote family unity, and conserve government resources.

Heartland Alliance’s National Immigrant Justice Center provides direct legal services to and advocates for immigrants, refugees, and asylum seekers through policy reform, impact litigation, and public education. For more information visit

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