Laura Lichter, president-elect of the American Immigration Lawyers Association, describes prosecutorial discretion in the context of a police officer witnessing a bank robbery and jay-walking at the same time and knowing to stop the bank robber first. This is essentially the principal that is being put to work in the immigration review pilot program in Denver that started December 4 and will last six weeks.
Denver and Baltimore have been chosen as two cities in which Immigration and Customs Enforcement (ICE) attorneys will review every open, non-detention immigration case on the immigration court's docket by January 13, 2012 and apply prosecutorial discretion to each. Lichter says that represents about 7,800 cases in Denver.
ICE attorneys have been instructed to exercise prosecutorial discretion and close low priority cases, such as people who served in the military, have no criminal history, went to school here, suffer from mental or physical disabilities, have a relative who is a U.S. citizen or kids who have been in the country for a long period of time. This will allow ICE to focus its resources on immigrants who are a threat to national security, accused of terrorism, have a lengthy criminal history, have been convicted of immigration fraud or have few ties to the U.S.
"And what this means in real terms for enforcement is that if you only have 400,000 seats on the bus -- only 400,000 people a year really, literally can be deported. Wouldn't you rather those seats go to people that have some serious criminal issues or are a danger to our communities?" asked Lichter during a conference call Thursday also featuring several other stakeholders.
The program is an initiative from the Obama administration, and essentially a more intensive version of what is happening across the country. ICE lawyers in every state are practicing prosecutorial discretion when reviewing immigration cases, but Denver and Baltimore are the only cities in which every case on the immigration court's docket is being considered. Lichter says there are approximately 300,000 pending immigration cases nationwide.
Immigrant activists emphasized what the pilot program is and what it isn't. Immigrants whose cases are closed during this pilot will not see their cases advance toward deportation, but they're not necessarily any closer to citizenship.
"In some cases, those cases will basically just be put on hold; they'll be frozen in a status that's called an administrative closure," Lichter says. "But it's important to understand that anybody who's kind of kicked out of the active process of the immigration court in this manner isn't getting a green card. They're not getting a status, they're not getting a visa, and in many cases they may not even be eligible for a work permit. It's basically saying those low priority cases are going to be put on hold."
One such family placed in this administrative limbo is that of Raul and Judy Cardenas. Raul's case was recently closed, as he is a prime example of a low-priority case. He and Judy, who is an American citizen, married in 2002. At that time, Judy applied for a spouse petition, which would allow Raul to gain citizenship if approved. They have been waiting since 2002 for a decision on that petition and just six months ago received their marriage interview, which is used to help judge if their marriage is legitimate. While the hold on his case is good news, it has just sprouted more uncertainty.
"I don't know if they stopped the deportation or not," Raul says. "I don't really understand that point. I still cannot work. I still cannot support my family. I feel like I'm useless, because I can't work and I can't support my family the way I want."
Raul has worked for the same company for eight years, but another person's Social Security number was listed with his name on file, which initiated his deportation case. Raul is the stepfather to Judy's two sons and the couple has a daughter that was born in 2003. The court proceedings have put a strain on their family.
"Our children, we've protected them from the scary part as much as we can," Judy says. "But when three sheriff investigators come to your house on a sunny Sunday summer morning at ten o'clock in the morning and your kid opens the door looking for dad, then the bubble is burst and we all have to face this fearful situation. We're tired of the fear, and for the betterment of our country, we would like families to be left alone that have a legitimate relationship. We are American families and we are not a threat to this community and we're not a threat to public safety and security."
Gerardo Noriega is another immigrant whose case will be reviewed under the pilot program, and he's hopeful about the process.
"I think Mr. Noriega sets up a perfect example of what this policy should be," says Hans Meyer, Noriega's attorney. "And what it should be is taking people at their individual circumstances. And Mr. Noriega's case -- obviously he spent over twelve years in this country, he grew up here, he went to high school here, he graduated here, he plans to go to college here. All of his family are either citizens or lawful permanent residents in this country. And they have tried to regularize his status, and the failure to do so has really been a result of what has been more inefficiencies and problems with the visa system than his failure to try to make those things happen."
Noriega is a twenty-year-old Smoky Hill High School graduate who was pulled over for a broken license-plate light. His family submitted a petition for residency for him in 2000, and he has been waiting on a decision since. If Gerardo is deported, he will be forced to return to Mexico, where he has no family and hasn't visited since he was nine. For him, limbo is not such a bad state.
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"Not everybody is going to benefit from the same results," says Julie Gonzales, director of organizing for the Colorado Immigrant Rights Coalition. "For some people, having their case administratively closed and having everything put on hold beats the heck out of having to leave the country and leave your family behind. But for other people, their only means for obtaining a lawful status is going to be going through a hearing before an immigration judge."
Gonzales and other immigrant activists will be keenly watching the pilot program to see what steps are taken afterward, and to make sure they agree with decisions made during the process. Lichter says immigrants who are not granted prosecutorial discretion during the pilot might be granted it at a later time, perhaps when more evidence has been gathered on their case, but there is no formal appeal process. She also says ICE officials are willing to review decisions the immigrant activist community might disagree with. But that is the extent of oversight for the pilot.
"One of the biggest issues about prosecutorial discretion is understanding that it is discretion and discretion is a judgment call," Lichter says. "Discretion, traditionally in legal circles, is something that is not reviewable unless it really crosses the line into something that is unlawful or extremely biased."
More from our Immigration archive: "Jeanette Vizguerra's work-visa denial could lead to activist's deportation: Lawyer plans appeal."