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Use of prosecutorial discretion to close immigration cases down

Surge of recent arrivals, cautious prosecutors could be factors, attorneys say

The use of prosecutorial discretion to close cases in Baltimore Immigration Court has lagged below the national trend, particularly this year, when only 1.6 percent of the immigration cases reported closed so far have been disposed of this way.

But even nationally, only 6.7 percent of immigration cases closed since October 2011 have used this method, according to data from Syracuse University’s Transactional Records Access Clearinghouse. Prosecutorial discretion reflects the power prosecuting attorneys have over whether or not to bring criminal charges and what charges to bring — particularly relevant in immigration cases, where other wheels are often turning that may decide a defendant’s future.

These figures appear to contrast with President Barack Obama’s call to close nonpriority cases and concentrate on deporting criminals and national security threats. But immigration attorneys said there are likely several factors influencing the relatively low percentage of cases that have received prosecutorial discretion in recent years. Those include the high number of recent arrivals, the percentage of undocumented immigrants not represented by an attorney and the cautious nature of immigration prosecutors, lawyers said.

New arrivals

The surge of undocumented immigrant children that crossed the southern border in the last year could play a significant role in the infrequent use of prosecutorial discretion, said Hayley Tamburello, a solo immigration attorney in Baltimore.

The executive action Obama announced in November included new (now temporarily blocked) protections for some minors, as well as undocumented immigrants who are parents of U.S. citizens or parents of lawful permanent residents, but it also designated recent arrivals as a priority for deportation.

“Part of the problem is that the recent border entrants are considered priorities irrespective of their age,” Tamburello said. “A 5-year-old or an infant who comes in — perhaps they could have [received PD] in the past, but they wouldn’t now.”

It’s still possible to argue in favor of closing a recent immigrant’s case, although it is more difficult, said Adonia Simpson, managing attorney of immigration legal services at the Catholic Charities’ Esperanza Center in Baltimore.

“We’re still exploring how this is going to affect our clients. There’s still room for advocacy even if somebody’s considered a priority,” Simpson said. “If there are really compelling humanitarian reasons or something else that would set the case apart, we could argue that the agency exercise its discretion and administratively close the case.”

An example would be an immigrant minor whose family lives in the United States and who has no relatives in his or her home country, Simpson said.

Strained resources

The high volume of unaccompanied immigrant children has caused the backlog of cases to grow — in Baltimore, the number of pending cases reached 10,272 by the end of March — and has strained the ability of legal aid groups and attorneys to provide representation.

While a defendant doesn’t need to formally request prosecutorial discretion to receive it, in practice, having an attorney may be crucial. The vast majority of the cases that are closed through prosecutorial discretion have been cases where the defendant had representation, said Elizabeth Keyes, director of the University of Baltimore School of Law’s Immigrant Rights Clinic.

The low use of PD could also be attributed simply to prosecutors’ caution, Keyes said.

“People in charge of prosecution and enforcement are conservative when making judgment calls,” Keyes said. “If there’s a long shot that this person will end up, for example, being involved in a fatal DUI, they just don’t want to be part of that situation.”

When to seek discretion

Prosecutorial discretion is often either an intermediary step while the immigrant seeks more a more permanent form of relief, or a last resort for defendants who aren’t eligible for other forms, attorneys said.

“There’s no question about it, it’s better to get asylum than prosecutorial discretion, because prosecutorial discretion does not come with any additional benefits — there’s no work permit attached; you’re still present without any kind of lawful status,” Tamburello said. “If you have asylum, you’re on a pathway to citizenship.”

However, PD is an option attorneys also seek for some defendants who are eligible for relief but don’t want to go through the court process, she said.

“I have clients that would do whatever it takes to not have to go to court,” Tamburello said. “A lot of asylum seekers are traumatized, so the thought of going to court and having to relive the trauma they suffered is something they wish to avoid at all costs.”

If the government grants prosecutorial discretion, it’s a more positive solution for the client, she said — there’s still no present risk of deportation, and the client doesn’t have to recount traumatic experiences.

In other cases where the defendant likely qualifies for asylum, testifying in court is too much of a risk, Keyes added.

“There’s a case our clinic worked on where our client, he actually had a decent asylum claim, but he had some severe cognitive issues, and he could not testify on his own behalf,” Keyes said. “When the government offered us administrative closure, we took it.”

About Lauren Kirkwood

Lauren Kirkwood covers the business of law beat at The Daily Record.