During the past week, Multi-American has been counting down the biggest and most influential immigration stories of 2011. That's not to say there were only five: It's been a major year for stories related to the immigration debate, especially as the battleground has shifted to the states, record deportations have continued, and the Obama administration's expansion of federal-local partnerships such as the Secure Communities fingerprint sharing program continues to draw controversy.
Stories that didn't make the list are also worth mentioning, among them the passage of state tuition-aid bills for undocumented students like the California Dream Act and the continued steep drop in illegal border crossings - even as illegal immigration remains a popular talking point for candidates seeking the presidency in 2012. Here are M-A's choices for top stories of the year.
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A U.S. Immigration and Customs Enforcement officer prepares an undocumented Salvadoran immigrant for a deportation flight bound for San Salvador in Mesa, Arizona, December 2010
Last month, U.S. Immigration and Customs Enforcement director John Morton issued a memo to the agency's employees urging the use of prosecutorial discretion in the cases of certain immigrants, among them people who grew up in the United States after arriving here as children, and those who have served the military and their families.
It's a directive that will be put to the test, as U.S.-raised young people continue to land in deportation proceedings. And just how it changes things remains a bit of a mystery.
For those who are unfamiliar with what prosecutorial discretion is and how it's exercised, the Immigration Policy Center recently updated its guide to understanding how it works in immigration law. Among the basics that are covered:
What is Prosecutorial Discretion?
“Prosecutorial discretion” is the authority of an agency or officer charged with enforcing a law to decide whether to enforce the law in a particular case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion.
The authority to exercise discretion in deciding when to prosecute and when not to prosecute has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts. The Supreme Court has made it clear that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney 470 U.S. 821, 831 (1985).
When is Prosecutorial Discretion Used in Immigration Enforcement?
Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when: deciding to issue a detainer; deciding to issue a Notice to Appear; focusing enforcement resources on particular violations or conduct; deciding whom to stop, question, or arrest; deciding whom to detain or to release on bond, supervision, or personal recognizance; seeking expedited removal or other removal by means other than a formal immigration court proceeding; settling or dismissing a proceeding; granting deferred action, parole, or staying a final order of removal; pursuing an appeal; executing a removal order; responding to or joining in a motion to reopen removal proceedings; and to consider joining in a motion to grant relief or an immigration benefit.
Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.
Photo by olongapowoodcraft/Flickr (Creative Commons)
A recently reintroduced Development, Relief and Education for Alien Minors (DREAM) Act received its first Senate hearing this morning, in a chamber packed with young undocumented immigrants who stand to benefit from a bill that proposes granting conditional legal status to young people who arrived in the U.S. before age 16, provided they attend college or join the military and meet other criteria.
There's no date set yet for a vote, and the Dream Act has historically been a tough sell. In the meantime, though, the Obama administration recently clarified its position on Dream Act-eligible immigrants and where they fall on the priority scale for deportation, which is low.
Earlier this month, as U.S. Immigration and Customs Enforcement announced planned reforms to its embattled Secure Communities enforcement program, among the memos released by the agency was one urging the use of prosecutorial discretion in the cases of certain immigrants when determining who should be detained or deported. Among these are undocumented immigrants who came as young children, have graduated from a U.S. high school, or who have pursued or are pursuing a college education. Those with military ties are on the list as well.