Prosecutorial Discretion Update: ICE Los Angeles

Prosecutorial Discretion is a remedy applied to sympathetic cases where certain aggravating factors (such as serious crimes, repeated violations of immigration law) are not present in cases pending before the immigration removal judges. Prosecutorial discretion (PD), if granted, could end in the closure or termination of removal proceedings against an immigrant who may not have any other relief available.  I've been watching ICE closely to see if prosecutorial discretion is actually becoming a realistic option and is actually being granted.

So far, this is what we know. In mid March 2012, Los Angeles ICE (Immigration & Customs Enforcement) Director Tim Robbins, and Acting Chief Counsel, Jason Aguilar met with local Congressmembers Judy Chu, Grace Napolitano, and Lucile Roybal-Allard and various nonprofit immigration organizations including the ACLU and American Immigration Lawyers Association (AILA) to discuss the implementation of prosecutorial discretion so far in Los Angeles.  LA has one of the largest ICE operations in the country so news here is helpful in understanding how ICE is handling these cases on a mass scale.

ICE confirmed the following new info:

• Los Angeles is currently reviewing about 50,000 cases. Los Angeles has about
• 20% of the nationwide immigration court case load.
• 22,000 cases have been reviewed.
• Los Angeles has administratively closed 200 cases.
• About 2000 cases (pending in Immigration removal hearings) have been identified for administrative closure pending background checks.
• Review of the remaining caseload is expected to finish by summer 2012. New cases will continuously be reviewed.

Even if a PD request was previously denied, ICE will still accept a new one technically. Whether a decision will change could depend on the arguments and how long ago.

The Acting Chief Counsel for the ICE attorneys in court stated that trial attorneys would mention/raise
to the Immigration Judge the potential availability of PD, which is a huge positive sign.  Whether or not this is actually happening and Immigration Judges are becoming aware of ICE's willingness to offer PD is something that remains to be seen in practice.

On the down side, still no work authorization (work permits, EADs) is available to those whose removal cases have been terminated or administratively closed due to a grant of prosecutorial discretion. LA ICE Director, Tim Robbins stated their is currently no plan to issue EADs as PD creates no "status". ICE believes the EAD issue is a CIS issue, because they do not have the authority to grant EADs. ICE will also not be granting "deferred action" to PD cases which he called a "unique" form of relief and only available for the most extreme cases.

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