Prosecutorial (IN) Discretion

Trial Attorneys (“TA’s”), are the INS’ version of a District Attorney or “DA.” When the INS is trying to “remove” (formerly known as “deport”) someone from the United States, the TA represents the INS in court. Immigration Court proceedings are begun by the preparation of a “Notice to Appear” (“NTA”) before the Immigration Judge. These NTA’s are normally prepared by an INS agent, and then supplemented or superseded by a new NTA drafted by the Trial Attorney. Depending upon the initial officer who prepares the NTA, and/or the Trial Attorney who is assigned to prosecute, you will determine the contents of the NTA.

Two immigrants who are thought to have violated the same sections of the Act, can be charged differently, depending on the attitude of the person preparing the charging document. Although sweeping changes to the immigration laws came about in 1996 divesting immigration judges of otherwise discretionary powers, discretion, or the lack thereof on the part of the INS still exists in one form or another.

In any event, once the NTA is filed with the Immigration Court, the Court has “jurisdiction” over the immigrant. Conversely, until the NTA is filed with the Court, the Court is powerless to order an immigrant removed. Although immigration violations are normally not criminal, one may nonetheless be justifying her conduct before an immigration judge.

Take for example the lady who entered the United States under a false name. After falling in love with and marrying a citizen of the United States, she is petitioned by her U.S. citizen spouse. Two years later, the happily married couple has an interview before a district adjudications officer (DAO) in an effort to become a legal permanent resident, i.e. get her “green card.” The DAO, doing his job, discovers the false name, continues the interview, and requests submission of “601 Waiver.” I-601 is the INS form used to justify a waiver under section 212 of the Immigration and Nationality Act, or grounds of inadmissibility to the United States. Although it sounds strange, even though you are here in the United States, you still must be “admissible” at the time of your interview.”

The basis of a 601 waiver is hardship to a United States citizen or legal permanent resident citizen spouse, parent or child. In other words it must be demonstrated that deportation would result in extreme and unusual hardship to a spouse, parent or child who is a citizen or legal permanent resident of the United States. This standard of proof is a very exacting one, and all to often, a lawyer or notary who claims to be able to handle your case files a skeletal form with or without a brief, which ends up getting denied. You appeal the 601 and the appeal is denied. You are eventually served with charging documents, or a Notice to Appear before the Immigration Judge. The INS is trying to deport you!

In November, 1999, in light of the growing number of persons placed into removal proceedings because of their inability to meet the extreme hardship standard, a letter was authored by 28 members of the House of Representatives. This letter, addressed to Attorney General Janet Reno and INS Commissioner Doris Meisner, called for prosecutorial discretion in cases where NTA’s are issued despite apparent extreme hardship. Hardship cases are not only terribly problematic for the families burden upon the courts, and consequently the taxpayers.

The letter from the members of the House was promptly responded to by Robert Raben, Assistant Attorney General for the Justice Department’s Office of Legislative Affairs. In this surprising letter, Mr. Raben noted that the INS is now in the process of developing additional guidelines upon the issue of prosecutorial discretion.

In his letter, Mr. Raben indicates that many long time residents have been severely impacted by harsh changes to immigration laws that came about with the 1996 amendments to the Act. These residents are those of the type previously described. In other words, these are not people with serious criminal histories, but instead, are those of the type, among other things, that may have used a different name to gain entry into the United States.

Mr. Raben likewise pointed out that even if prosecutorial discretion is exercised at the level of the Trial Attorneys, or even before by those other officers who are empowered to issue Notices to Appear in proceedings, the problem may not be solved. One might leave the United States, and then when seeking to regain entry, may be discovered for having committed the initial fraud. One might then be “paroled” into the United States for prosecution by the INS.

Regardless of the alleged violations of the Act, Mr. Raben has indicated that the Madame Reno is in the process of drafting additional guidelines upon the exercise of prosecutorial discretion to “promote consistency and address the initiation or termination of removal proceedings in cases with the potential for extreme hardship.”

If you are in removal proceedings because of your inability to prove hardship at a lower level, it is possible that removal proceedings might be terminated in the future. On the other hand, it is important to prepare for case as though it will go to trial and be ready to demonstrate hardship to your United States Citizen or legal permanent resident spouse, parent(s) and/or children.