The Trump administration has ended a form of prosecutorial discretion that was prevalent during the Obama administration to make it easier to deport illegal immigrants.
Prosecutorial discretion generally refers to the ability of prosecutors to prioritize certain cases due to operational constraints. This was used by the Obama administration to enact out its immigration policy, specifically by prioritizing the deportation of gang members, criminal aliens, and very recent entries. Under this policy, immigration attorneys could make the case that their clients fell within the non-enforcement categories and thus should not be deported.
A May email from Immigration and Customs Enforcement’s office of the chief counsel in Baltimore to an immigration attorney obtained by TheDC stated that prosecutorial discretion will no longer be “triggered by an affirmative request.” An ICE spokeswoman Sarah Rodriguez told The Daily Caller last week, this meant that ICE is no longer entertaining requests of prosecutorial discretion from attorneys representing illegal immigrants.
“Before Obama, prosecutorial discretion in the immigration context simply referred to instances where ICE attorneys would, for a variety of case-specific reasons, pursue other avenues in lieu of deportation, like allowing an illegal alien to return voluntarily instead of being formally deported (known as voluntarily departure), pursuing supervised release instead of detention pending a removal-hearing, or granting a temporary stay of removal for emergency or public interest reasons,” Ian Smith, an attorney with the Immigration Reform Law Institute told TheDC.
“Unlike Obama’s broad-based nonenforcement carve-outs, each of these alternatives are expressly provided for in the federal immigration statute and are allowed to be pursued by ICE agents and attorneys according to closely set parameters and on an individualized basis,” Smith added.
The Obama administration did not keep figures on how many illegal immigrants received prosecutorial discretion, so it is hard to directly quantify how many more will be deported due to this new policy.
President Trump has put all 12 million or so illegal immigrants in the country up for deportation, except the estimated 790,000 illegal aliens who receive DACA.
ICE Director Thomas Homan said at a recent press conference that no illegal immigrant should “be comfortable” in the U.S.