Prosecutorial Discretion, or Abuse of Discretion?

By Dan Cadman, January 7, 2014

As it does from time to time, Syracuse University's Transactional Records Access Clearinghouse (TRAC) has produced one if its statistical analyses with a prosaic name that belies its capacity to raise the eyebrows of anyone who takes the time to give it even just a bit more than cursory examination.

It is a chart entitled "Immigration Court Cases Closed Based on Prosecutorial Discretion, by Immigration Court and Hearing Location as of November 30, 2013".

The chart provides the statistical breakdown of a) total backlogs at the 83 different immigration court locations throughout the country; of b) how many cases were closed/charges dismissed through the use of "prosecutorial discretion"; and, finally, c) what the closures represent as a percentage of backlogs.

The first row of the chart shows the compilation of all immigration courts by those three categories: 344,230 cases backlogged nationwide; and 27,876 cases closed as the result of prosecutorial discretion, representing 8.1 percent of the total. (Despite reference to November 30, 2013 in the chart's title, the backlogs column indicates that it is as of September 2013: the discrepancy is not explained.) If you stop right there, you might very well think, "Well, all the yapping from conservatives and enforcement types complaining about the government abusing its discretion seems to be hype," right?

Well it's not. Look deeper.

First, consider the fact that 28 of the 83 separate immigration courts (that is to say, 33.7 percent – about a third of all the courts) had figures in the double digits.

Some of those double-digits are quite shocking. To name just a few, for example:

  • 38 percent of the cases in Charlotte, N.C. got flushed;
  • Ditto with 20.5 percent of the cases in Orlando, Fla.; and
  • Likewise in Seattle, Wash., with 35 percent of the backlogged cases there closed due to prosecutorial discretion.

Second, consider that the immigration court locations in which prosecutorial discretion was exercised included a variety of detention centers, jails, and prisons. If the government considered the aliens sufficiently serious threats to put them into lockdown to begin with, or they were facing criminal charges in addition to being illegally in the country, what kinds of cases could they embody which possibly merit this extraordinary form of "relief"?

Third, consider the ill-advised nature of dismissing outstanding charges against aliens and closing their cases in strategically key locations:

  • 35.5 percent of the backlogged cases were closed in San Diego, which sits just north of our border with Mexico. What must intended border crossers queuing up in Tijuana derive from that message as they hear from their just-released compatriots about this extraordinary largesse?
  • Incredibly, more than 82 percent of the backlogged cases in Guaynabo, Puerto Rico, were closed. Consider that Puerto Rico is, for Caribbean aliens, the gateway to the United States. For instance, Dominicans intent on entering the U.S. float into Puerto Rico on rickety yolas (small fishing craft). They know that if they are successful in their attempt, any kind of transportation from Puerto Rico to anywhere, anywhere at all, on the mainland is treated as domestic: they need face no immigration officers or port of entry barriers. Dismissing the backlogged cases sends a clear message, and it is most assuredly not one of rigorous enforcement at our maritime back door.

Still think this prosecutorial discretion stuff is being handled wisely? I sure don't. It puts the lie to the government's overblown claims of the past few years about the record numbers of aliens removed. Lies, damned lies, and ... statistics.