Update on Prosecutorial Discretion: The Time to Act is NOW!

Hanes & Bartels Jan. 17, 2012

Between now and January 13, 2012, the government is conducting a review of almost all deportation cases pending in Colorado’s immigration court. During that period, the government’s attorneys will review each file and decide on a case-by-case basis if the file should be closed, or if the case should continue in the deportation process. Individuals whose files are chosen for administrative closure will not be deported.

Several weeks ago my article for this publication focused on the program referred to above. The article explained that the government had recently announced the implementation of the “Prosecutorial Discretion” program. Through the program, the government’s attorneys would review every existing deportation file in the United States, and would make a case-by-case decision as to whether to continue to prosecute the deportation, or to close the file. Individuals whose files were closed would not be deported.

Prosecutorial Discretion comes as a result of the government simply being unable to process the 300,000 deportation cases that are currently pending nationwide, although we would be naïve to not recognize that the program’s implementation likely also has something to do with 2012 being an election year.

Since the last article, we have learned that the government has chosen Denver and Baltimore as “pilot markets” to test how the program works. Shortly after the news of the pilot program was given to local Immigration and Customs Enforcement (ICE) attorneys and the private immigration attorneys, ICE began conducting reviews of all 7,800 deportation cases in Colorado.

The review process of all currently pending files is scheduled to last until January 13, 2012. This means that if you or a loved one are currently in deportation proceedings, the file will be reviewed between now and January 13, 2012.

If it seems like I am repeating myself, you are correct. My concern comes from several conversations I have had recently in which I was told that many people in deportation have been misinformed about the process, and believe that nothing will happen between now and January 13th, and that they are not supposed to take any action until after that date. This is not correct. The government’s review and decision as to each file will depend on the information and evidence contained in the file. Therefore, individuals in deportation proceedings who wish to attempt to take advantage of this opportunity should properly submit evidence to support their case as soon as possible before January 13th.

Many immigrations attorneys have received a list from ICE of the 19 factors that the government attorneys will be considering when making decisions on the files. Those factors including, among others, the amount of time the individual has been in the United States, how and why the individual entered the U.S., the person’s pursuit of education in the U.S., the person’s criminal history, the person’s immigration history, the person’s ties and contributions to the community, whether the person has a U.S. citizen or permanent resident spouse, child, or parent, etc.

We consider this information to be critical for the community. Sadly, however, the majority of individuals in deportation are unrepresented and, therefore, will likely never hear about it. It is our hope that by spreading the word through publications such as this, we can succeed in sharing accurate and timely information to our communities.