Judges have been realizing that changes must be made to control their large dockets, manage scare resources, and attempt to instill humanity into the immigration system. They are urging attorneys to use prosecutorial discretion when deciding on a case rather than immediately litigating a case.
“Prosecutorial discretion is the authority of a law enforcement agency or officer to decide whether and to what degree to enforce the law in particular cases.” A successful example is the Deferred Action for Childhood Arrivals (DACA) initiative that grants relief to individuals and allows them to apply for lawful permanent residence or citizenship. However, with the exception of the DACA initiative, the Department of Homeland Security (DHS) usually ignores other cases where prosecutorial discretion would also be appropriate.
DHS attorneys are urged to use prosecutorial discretion as early on in the process as possible, but this “can be granted while a case is pending in immigration court, before the Board of Immigration Appeals, or on appeal to the federal courts.” In Vega-Alvarez v. Holder, prosecutorial discretion was granted after the Ninth Circuit Court ordered the parties to participate in out-of-court discussions and submit briefs. This case involved a Mexican couple with four children who were U.S. citizens and no criminal history. Because the couple’s deportation would cause “severe hardship” for their eldest daughter, the immigration judge granted them relief from removal.
In a similar case of Gasparian v. Holder, an Armenian family with no criminal history and ties to the U.S. were granted a judgment that allowed their son to apply for DACA and the court “suggested further that the government may well wish to avoid splitting up the family by declining to remove them as well.” Clearly the courts used their prosecutorial discretion to preserve family unity and were sympathetic in these cases.
Finally, the Second Circuit Court of Appeals has announced that all pending cases will be held for 90 days for DHS to decide whether they will advance or will be removed from the court’s docket.
Federal judges are recognizing the importance of an efficient immigration system. By encouraging attorneys to use prosecutorial discretion they are also illustrating that the court recognizes the sensitivity of the cases being brought before them. They are demonstrating to the public that they are able to show some heart when deciding whether or not to separate a family.
If you have questions regarding relief from removal, applying for a visa, or other immigration laws, contact us at 314-961-8200 or visit our contact page.