The Human Cost of "Prosecutorial Discretion"

By Jessica M. Vaughan on January 28, 2015

An illegal alien now under arrest for murdering a 21-year-old convenience store clerk in Mesa, Ariz., on January 22, 2015, was previously in ICE custody in 2013 after a drug- and gang-related felony burglary conviction, but was released on bond after just a few days. This incident tragically illustrates the human cost of the Obama administration's "prosecutorial discretion" policies, otherwise known as "catch and release".

ICE says in a statement that it offered the man, Apolinar Altamirano, release on bond pending a deportation hearing (that still has not taken place two years later), because he had "only" the one felony burglary conviction. It seems that not even all felons are considered to be eligible for enforcement, despite ICE's insistence that it is focused like a laser on removing aliens with criminal convictions, with even "non-violent" felons supposedly ranked as a high priority for deportation, and the president's insistence that the focus is on "Felons, not families. Criminals, not children. Gang members, not a mom who's working hard to provide for her kids." (Emphasis added.) As my colleague Jon Feere has said, it appears that bloodshed is a prerequisite for immigration enforcement these days.

Apolinar Altamirano

Altamirano is one of 36,007 convicted criminal aliens freed by ICE in 2013. Of these, 193 already had homicide convictions, including three in Arizona, and 2,510 had burglary convictions.

ICE is making the excuse that the law allows for people like Altamirano to be released pending a deportation hearing far in the future. It does, but that doesn't mean it's a good choice. And it's certainly not a requirement. In fact, the ICE website says this: "We help keep violent gangs from taking over our streets." Apparently that motto is just so much bluster and bravado from an agency made toothless by this administration.

The law also allows ICE to keep such an offender in custody for prompt removal. ICE could have done so with Altamirano in 2013, and placed him on the immigration court's detained docket, which moves much faster than the infamous non-detained docket, with its years-long backlog of cases. Even better, ICE could have offered Altamirano an even more accelerated form of due process known as a stipulated order of removal. This would have allowed Altamirano to essentially plead guilty on immigration charges and waive his right to appeal in exchange for expedited processing and review by an immigration judge, and ICE's agreement to repatriate him as quickly as possible.

These scenarios, especially stipulated removal, have been discouraged by the Obama administration in favor of release pending long, drawn-out proceedings in an overwhelmed and dysfunctional immigration court system. And, of course, most criminal aliens simply skip out on their immigration hearings if they are not detained.

These stories are sure to be repeated as the administration continues its dismantling of immigration enforcement. One of my sources reports that ICE offices are processing only a fraction of the cases they once handled in the recent past, despite the continued abundance of criminal aliens who could be removed. Whereas some offices once enrolled about 100 people a month into ICE's Intensive Supervision Appearance Program (ISAP) for lower-level criminals, who wear an electronic monitoring bracelet and check in frequently with monitors, now at best 10 people a month are required to have such supervision on release. Whereas some ICE offices once processed as many as 100 illegal aliens a day for removal, now these same offices often process fewer than five per day, with the same staff.

ICE has been given the staff, the technology, and reasonably adequate resources to remove 400,000 illegal aliens a year. But thanks to tighter and tighter restrictions on the officers' actions, only 316,000 aliens were removed in 2014, and only 102,000 of those were from the interior. Over the same time period, ICE freed another 30,000 convicted criminals from custody.

These destructive policies need to be checked by Congress — and the best place to begin is the pending 2015 DHS appropriations bill.