Prosecutorial Discretion Has Failed
Responding to ICE's release of data on prosecutorial discretion as of May 29, 2012, American Immigration Lawyers Association president Eleanor Pelta categorically stated ""The prosecutorial discretion initiative has failed."
Only 1.5% of cases in deportation proceedings under review have been closed so far (4,403 of 288,361). And "closed" is not entirely accurate, any case administratively closed"under the prosecutorial discretion review is technically still pending and can be reopened by ICE at any time for any reason. Of the cases administratively closed, Pelta said, "even those were granted only a temporary reprieve, keeping their lives completely in limbo. That's a very low rate-far less than the percentage that succeed in obtaining relief in court."
In its info release, ICE claimed the number of cases identified for administrative closure pending background checks is 9%. But that excludes cases of immigrants who are currently in civil immigration detention. The true number of cases identified for closure is only 7%. And ICE claimed in April that 9% of cases had been identified for closure. When will these cases "identified for closure" actually be closed?
So far only .07% of all detained cases reviewed by ICE have been closed (40 out of 56,180). This represents a policy of categorically denying detained cases even though many thousands of those detained cases clearly fit the prosecutorial discretion guidelines outlined in the Morton Memo. This policy has real-world consequences: Dylan and Francisco were eligible under the prosecutorial discretion guidelines but were deported anyway just within the last 10 days.
Regardless, a 9% closure rate is unacceptable. It might not even cover the number of Dream-eligible youth in proceedings, much less all the people who fit the Morton Memo guidelines. In addition, the administration backtracked on its promise to grant work permits to people whose cases are administratively closed, leaving them with no status, no ability to legally work, and no driver's licenses or social security numbers.
ICE attempted to justify its failure to facilitate work permits by asserting that 40% of people with cases closed under the program received work permits. However, those work permits would have been granted anyway since they are based on an underlying application for relief like asylum or cancellation of removal. The White House simply lied when it promised last August that work permits would be part of the deal.
Many in the immigrant rights community were skeptical of the program from the start. Any policy that vests complete authority with a president with the worst track record on immigration in modern history was destined to fail.
By the administration's calculus, however, the program has been a success. The program was announced in a series of press releases last year designed to maximize impact in the Spanish-language press. Along with the administration's highly-publicized battle with Arizona over anti-immigrant state laws (while ICE continues to deport every immigrant racially profiled by Arizona authorities), the prosecutorial discretion announcements helped President Obama cement his reputation as a defender of immigrants.
It's time for progressives and the press to hold President Obama accountable for his stealth crusade against immigrant families. No one can undeport the million people the president has deported or reunite those broken families, but he could take a step in the right direction by issuing an executive order to stop the current policy of deporting Dream Act-eligible youth.