The sharp increase in this administration’s deportation of immigrants, the vast majority non-criminals, is already reflected in the court system’s growing backlog. The newest report by the Transactional Access Records Clearinghouse (“TRAC”) found that the backlog in immigration continues to grow, rising 4.2% only since January 2011. The report also found that only 8.3 of the pending caseload involved people charged with criminal offenses, national security or terrorism cases. In New York, less than 4% of cases involved criminal charges. A shocking 91% of the backlog consists of immigrants charged with violating immigration rules, such as entering the country illegally, overstaying their visas, etc. As a result, in New York, it takes on average 508 days to resolve an immigration court case, according to the TRAC report (and that number is rapidly rising). From personal experience, I know there are a number of senior judges at 26 Federal Plaza that do not even have final hearings available in their calendars before 2014.
This should make a great case for prosecutorial discretion, which is Immigration and Customs Enforcement (“ICE)’s power to terminate immigration cases based on equities, including family ties to U.S. citizens and legal permanent residents, length of presence in the U.S., medical problems and disabilities, and much more. The standards for prosecutorial discretion have been outlined in ICE legal memoranda dating back to the 70’s, with most recent memos from June 17 and November 17, 2011. Why, then, are these guidelines being implemented inconsistently – and at times even facing resistance by the people charged with carrying out the policies? Certainly, the country needs to wake up from the dream that illegal immigration will go away, and recognize the individuals that should remain here so that we can focus our valuable and limited resources on immigrants with a serious criminal record or who pose a national security threat – both of which has become less and less of a priority, as far as the numbers are concerned.
Unfortunately, prosecutorial discretion is not a long term solution. Even when cases are terminated, these immigrants remain in limbo, without work authorization. While cases are often terminated based on peoples’ excellent employment record (and many immigrants in court proceedings are work authorized based on a pending immigration case), taxpayer status, being the sole or primary supporters of their families, and contributing to their community, once the case is actually terminated they are left unable to renew their work authorization. Creating a population of immigrants who are financially dependent, or working unlawfully off the books, is not good public policy. Since these individuals have become visible by going through the legal process, it makes a lot more sense to keep track of all of them and issue them employment authorization, having recognized that we will not have the resources nor the will to prosecute them in the near future. Meanwhile, we continue to wait for immigration to tie up loose ends and develop a sound and consistent policy on prosecutorial discretion.