Multi-American

How immigrants are redefining 'American' in Southern California

Prosecutorial discretion still a slow process, with relatively few cases closed

A man is prepared for a deportation flight bound for El Salvador, December 2010
A man is prepared for a deportation flight bound for El Salvador, December 2010 Photo by John Moore/Getty Images

A review of deportation cases announced almost a year ago by the Obama administration is having limited success when it comes to weeding out and closing the cases of people eligible to stay in the country, let alone alleviating the backlog in the immigration courts.

According to U.S. Immigration and Customs Enforcement, as of July 20, there had been 7,186 deportation cases administratively closed nationwide as a result of prosecutorial discretion reviews that began late last year, with federal staff reviewing more than 350,000 cases.

Of these, about 6 percent have been identified as "provisionally eligible" for prosecutorial discretion, meaning this relatively small number of immigrants meet the criteria established that makes them a "low priority" for deportation. Included in the criteria: a clean record, close ties to the United States, having lived in the U.S. since childhood, having served in the military or being part of a military family, or having achieved or attempting a college education.

It's not yet a done deal for all those deemed eligible. There are hoops they must jump through, such as producing additional documentation and background checks. Not all will make the cut.

At the same time, the case reviews haven't made much of a dent in the backlog that exists in the nation's immigration courts, one of the stated goals of the reviews a year ago.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University collects data from the immigration courts, and its numbers often differ from those of ICE, which uses multiple sources. Still, in its most recent report, TRAC concluded that as of June 28, the number deportation case closures under prosecutorial discretion came to less than 2 percent of the cases that had been pending in the courts as of the end of September 2011. From the report:

PD closures generally have involved cases that have been waiting longer than other types of closures. On average, it took 803 days between the date charges had been filed in Immigration Court and when the PD closure finally took place. This is in contrast to 385 days on average that Immigration Court closures have been taking this fiscal year. PD closures even take longer than the average time for Immigration Judges to grant relief — cases that typically take longer than any other type. During FY 2012, for example, relief was granted on average in 773 days.


The background checks and other logistics involved in adjudicating prosecutorial discretion cases can take time, said ICE spokeswoman Gillian Christensen via email today.

"Keep in mind, it can take awhile between a case being identified as amenable to prosecutorial discretion and the case actually being administratively closed in court, given the additional round of background checks and other factors involved," she said.

Read the 2011 ICE memo that established the prosecutorial discretion guidelines, and a primer on how prosecutorial discretion works.

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