ACLU Lens: DHS Shift on Deportation Policy a First Step toward Reform, but Leaves Many Questions Unanswered

In an unexpected move, the Obama administration Thursday said it would review deportation cases against 300,000 undocumented immigrants who haven't committed any crimes and pose no threat to national security.

From now on, each case will be looked at individually, and the government will use "prosecutorial discretion" in deciding which cases to pursue. In other words, common sense and fairness may finally be a part of the deportation equation.

"This is something the government should have done a long time ago," said Kate Desormeau, a staff attorney with the ACLU's Immigrants' Rights Project. "Just as troubling, the administration frames its policy as a means of facilitating the deportation of so-called 'criminal aliens.' However, the reality is that many individuals with criminal histories have the same factors that do not make their deportation a priority."

Desormeau cautions that many questions are left unanswered. Among them:

  • Which cases officials will review first, and whether there will be any procedure by which an individual can seek a review of his/her case.
  • Whether an individual will be notified when his/her case is being reviewed; and whether an individual will be informed when a negative decision has been made.
  • What information will be used to evaluate a case? Will people be allowed to submit evidence?
  • Whether this review applies to individuals seeking to reopen their cases or whether they can get a re-determination if their circumstances change.
  • Will the administration issue guidance or take steps to ensure that Immigrations and Customs Enforcement prosecutors and officers on the ground actually follow the agency's enforcement priorities?

As Joanne Lin, a legislative counsel for the ACLU noted here last week, 60 percent of the nearly 400,000 persons deported annually have never been convicted of a crime, or only have misdemeanors.

Those caught in this unforgiving net include pregnant women, crime victims, veterans who served with valor and students who came to the U.S. with their parents as young children and now want to go to college and become productive citizens in the only country they have known.

As Desormeau sees it, "prosecutorial discretion" allows for too much wiggle room and uncertainty. When such a controversial issue affects so many lives there should be no room for ambiguity. For example, will the government stop deporting people convicted of minor offenses including traffic violations? It's not clear, but it should be.

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