Immigrants without Legal Representation Not Benefitting from Prosecutorial Discretion

After ICE Director John Morton issued a memo last June outlining how and when ICE officials should exercise prosecutorial discretion in immigration cases, many were optimistic that the memo’s implementation would relieve backlogs and help the agency focus on higher priority immigration cases. Months later, however, folks are finding that one large group of people has limited access to this review process—immigrants without legal representation. In fact, nearly half of all immigrants in removal proceedings  appeared without legal representation in 2011, also known as “pro se.” While immigration attorneys often explain the effect of these prosecutorial discretion policies to their clients, pro se immigrants may be unaware that new policies are even in effect.

Unlike immigrants who have legal representation, pro se immigrants do not have access to information specifically directed at them explaining the exercise of prosecutorial discretion, how to obtain it, or what it means. This compounds the already serious problem that most pro se immigrants do not have access to information about what relief might be available to them. Moreover, whether or not they are aware of possible options for relief, they may be unaware of the implications of either accepting or foregoing an offer of prosecutorial discretion from ICE.

Underlying all of these deficiencies is a fundamental inequity—immigrants who cannot hire or find scarce pro bono attorneys are not entitled to government-provided representation in a deportation process that has devastating consequences, including separation from family for decades or forever.

To prevent pro se immigrants from falling through the cracks, immigration authorities can take a number of steps to ensure they understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it. First, ICE should advise pro se respondents prior to reviewing their files and explain how to submit documentation for agency officials to consider. Second, if ICE declines to offer a favorable exercise of discretion, agency officials should inform pro se respondents how they can “appeal” the decision to higher agency officials. Third, when ICE offers a favorable exercise of discretion, the agency should provide information explaining the consequences of accepting such an offer. And finally, prior to approving a favorable exercise of discretion, Immigration Judges should affirmatively confirm that pro se immigrants understand these consequences.

By adopting these recommendations, immigration officials can help alleviate one of the most fundamental inequities of the removal process: that the government does not provide attorneys to immigrants who cannot afford one.

Photo by OtnaYdur.

*This blog is excerpted from a new report by Joan Friedland, entitled Falling Through the Cracks: How Gaps in ICE’s Prosecutorial Discretion Policies Affect Immigrants without Legal Representation.

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  1. Victoria Sethunya (@UtahHumanRights)v says:

    Even immigrants with attorneys still remain at the mercy of a competent immigration attorney who will not “hang” the immigrant in order to pursue prosecutorial discretion.

    What is prosecutorial discretion?
    Does following this route imply that the immigrant admits to violating immigration laws?
    If so, will his or her attorney inform him or her on these admissions and their future implications if prosecutoria discretion fails?
    Can prosecutorial discretion be appealed?

    Immigration attorneys tend to say, “Let us look at your options” and my general understanding of this is that you are picking out of a raffle bag, something that might help you, not something that says you admit wrong doing.

    For those representing themselves, are the simplified directions to be handed out to them to know about prosecutorial discretion to help them benefit from it?

  2. arhesq says:

    This is not at all surprising. Our immigration laws are as complex as the IRS Code. Worse yet, hiding behind the absence of legal presentation are the consultants and notairos who, as one Immigration Judge pointed out to my client, “promise the moon and the stars” only to turn around and victimize the client by giving no service or placing him in a position worse than before he sought assistance.

  3. Hans Christian Linnartz says:

    It’s not just for unrepresented immigrants that this policy “change” has fallen short. I have taken a number of DREAM Act qualified young immigrants into immigration proceedings, hoping for prosecutorial discretion, only to find that the President’s promises of mercy aren’t materializing. This is partly because of bureaucratic inertia: The Office of Chief Counsel (immigration prosecutors) don’t stop driving towards deportation because of a campaign announcement. But it also has to do with Pres. Obama’s approach: He is very strong and persuasive in word, but does not follow up his inspiring promises with action. He could have issued regulations or at least operating instructions to Department of Homeland Security lawyers about how to implement “prosecutorial discretion,” but instead, the rhetoric of mercy has probably gained him political points without changing much – if anything – in the actual world of immigration enforcement and adjudication.
    Like many others who voted for President Obama, I am disappointed that the change which he promised – both before election and after – has simply not come. He continues to speak – often inspiringly – of change, but has not produced many changes which lie within his power. I am disillusioned and dispirited, feeling that I must look far outside the established two-party system for any real, true change.

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