NOI 3: Prosecutorial Discretion: Why Trump Is Deporting Fewer Immigrants Than Obama

What is prosecutorial discretion? Who exercises this discretion, and what are its impacts in our immigration system?

Jacob Tingen: Hi and welcome again to Nation of Immigrants. Today we’re going to talk about an interesting topic, prosecutorial discretion. We’re going to talk about what that means in the context of the current immigration debate, and frankly even just one angle of prosecutorial discretion. I think it’s kind of a broad topic, but what we’re going to focus on is its impact on Trump’s ability to deport immigrants. And we’re going to focus on, or round out the episode, talking about why Trump’s policies are actually leading to fewer deportations, even though it’s leading to in the immigrant community, probably greater fear. So let’s get started. Nation of Immigrants. Thank you for watching again.

Speaker 2: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Speaker 2: A podcast about US immigration law, with your host, Jacob Tingen.

Jacob Tingen: Thank you again for listening in. Like I said, we’re going to be talking about prosecutorial discretion. So I’m going to start with explaining what I mean by that term. So prosecutorial discretion is something that virtually any law enforcement officer uses. It’s their discretion or the choices they make when they judge between whether or not they’re going to prosecute somebody for a crime in any context.

Jacob Tingen: So I will start out with what I consider to be a bad story to illustrate my point. But we all know that oftentimes for whatever reason, quotas and tickets and those kinds of things for speeding, everybody knows that police officers do on occasion wait, and as the crowd goes by, pull over people for speeding. So how do they choose who to pull people over?

Jacob Tingen: Well, it’s not uncommon for many people on the street to drive over the speed limit. I think that that’s widely understood. And so police officers have to make constant judgment calls over who they’re going to pull over and who they’re not going to pull over. So for example, let’s say they’re by the interstate and they’re out here in Virginia and somebody’s driving west out to Charlottesville, and the speed limit is 55. And let’s say a car goes by at 56 miles per hour, 57 miles per hour. Will the policeman pull that person over?

Jacob Tingen: If they don’t, then that officer has exercised prosecutorial discretion, because they’ve said, “You know what? One mile over, two mile over. That’s not who I’m looking for today. I want to stop … I’ve got bigger fish to fry.” And so the police officer might wait until they find somebody who’s going 10 miles over the speed limit, 65, 66, 67, or even more, because those people present a greater danger to the community than maybe people that are going a mile or two over the speed limit.

Jacob Tingen: This is a common scenario. This happens all the time. Now I unfortunately do have a friend, well this is an unfortunate story. I don’t unfortunately have friends. So I have a friend who was becoming an attorney and did a ride along with a police officer here locally in Virginia. And it’s just unfortunate what happened while he was out. So they’re sitting in the back of a police car and they’re watching people go by and my friend can see the speedometer and see how fast people are going. And early on they had a conversation about this topic. “Well that person was speeding. Why don’t you pull them over?” “Oh, it’s just a mile or two. That’s not really … I’m not concerned about that person.”

Jacob Tingen: And then somebody went by at about seven or eight miles an hour over the speed limit. He said, “Well what about that person?” And the police officer said this. He said, “Well, I’m not really looking for that kind of person.” And my friend said, “Well, what do you mean?” He said, “Well, he was wearing a shirt and a tie. He’s probably just late for work. I figured I’m going to give him a pass.” At which point my friend said, “Well then who are you looking for?” And the police officer responded with this phrase, which I just think is a little disgusting. He says, “Trash. I’m just looking for trash, white trash, black trash, any kind of trash. Maybe somebody in a tank top who looks like they’re borrowing their girlfriend’s car on a suspended license. That kind of thing. That’s who I’m looking for.”

Jacob Tingen: Now, I find that exercise of discretion a little appalling, but I’m using that to illustrate the point that police officers and law enforcement officials do use their discretion at many different stages of enforcing the law. All right, so let’s back away from that story since that’s not necessarily where I’m going today in the immigration context.

Jacob Tingen: Under the Obama administration, President Obama and the administration had set out certain guidelines for who they were going to deport. And they issued a series of memorandum that outlined who they were focusing on. And if you weren’t a priority for deportation, when you got to immigration court, it was common, and I would even go so far as to say frequent, for the government attorney to say, “Well look, it’s our position that this person isn’t a priority for deportation. We’ll just move to administratively close and not prosecute this person for removal from the United States.”

Jacob Tingen: And so I had a great many clients who accepted prosecutorial discretion, accepted administrative closure of their immigration case. And while they didn’t receive any specific immigration benefit, they also weren’t going to be removed from the United States because they weren’t a priority for deportation.

Jacob Tingen: Now in these Obama era memos, it outlined basically three categories of priority for deportation of immigrants. And the nuts and bolts of it were immigrants who had a criminal history were a priority for deportation, and immigrants who were recent entries to the country. So the idea is, “Well, if they’re in the interior of the United States, we’re going to get rid of as many people who are causing problems as possible. And then to kind of just enforce our Southern border and make sure that it’s not porous, we’re going to try to remove as many people as quickly as possible who just came in.”

Jacob Tingen: And so that led to, frankly, record-level highs of deportation. And to the point that some people called Obama he deporter in chief. Now this might be news to some people who listen to certain outlets and believe that Obama was always very nice to the immigrant community and never deported anyone. But the reality that we’re going to get to is that Trump is actually deporting fewer numbers than Obama at a much lower pace than him. And so it kind of puts all of this immigration stuff into context when you think about how prosecutorial discretion is exercised and why Obama’s strategy might have been actually an intelligent approach to immigration, and where Trump’s approach to immigration fails in many respects.

Jacob Tingen: So again, PD under the Obama era, if an immigrant had a criminal history or if they recently had entered the country, they were a priority for removal, and virtually everyone else, if they weren’t causing problems, they were not a priority for removal. Now, this turned into some outcomes that I didn’t like. Sometimes I would have clients with very strong asylum cases. We would ask for prosecutorial discretion. We would ask for administrative closure early on in the process. We’d get denied, and then we’d prepare a case, and we’d put all these documents together, and we’d show up at the immigration court. And then the government attorney would, I don’t know if they were just having a bad day or didn’t prepare for the case, but suddenly they’d changed their mind and offer prosecutorial discretion on the day of the hearing.

Jacob Tingen: And that prompts a conversation that I have to have with my client. I have to ask my client, “Hey, with prosecutorial discretion, they’re offering to administratively close your case before we have this hearing.” And then they’d ask, “Well, what does that mean?” And I’d say, “Well, it doesn’t give you any specific immigration benefit. You have a pending application for asylum and that will remain pending. And based on that, you can renew work authorization for the foreseeable future, but you won’t ultimately be considered an asylee. But if we have a hearing and the judge decides against us, then you could be removed.”

Jacob Tingen: “So we have a guaranteed renewal of your work authorization and the opportunity to just keep living here without anybody trying to get rid of you. Or a somewhat risky proposition where even though I think you have a strong case, there’s still a risk. What if the judge doesn’t agree with us and you could be removed?” So overwhelmingly my clients decided, “Well, I’m just going to go with prosecutorial discretion. I’m going to go with the low to no risk option and stay and just not have to worry about a hearing that could be potentially stressful where I’m going to have to talk about very personal things and trauma that I experienced.”

Jacob Tingen: And so I feel like I wasn’t particularly happy with those results. I wish that some of these DHS attorneys had perhaps been more willing to stipulate to certain issues and facts surrounding a case. If I’d presented a strong packet and that’s what persuaded them to do prosecutorial discretion, then maybe offers to stipulate by government attorneys I think would’ve been a better approach. But hey, PD under the Obama administration was offered pretty regularly, and my clients liked the no risk option and that’s what they took many, many times.

Jacob Tingen: Okay, elections happened. Trump is president and one of the first things he did was outline his priorities for deportation. Now remember, like I said, under Obama there were clear priorities for deportation, people who are causing problems. And by that I mean people with criminal histories who have been convicted of crimes here in the United States, and then people who had recently entered the United States. Virtually no one else’s a priority for deportation.

Jacob Tingen: Under Trump administration, a new memo was issued that basically said, “Everyone’s a priority for deportation. There’s no one that’s exempt. We’re going to get everybody out and we’re going to do it as quickly as possible.” And that matches Trump’s rhetoric on the campaign trail and currently in office that, “Hey, if they didn’t come the right way, then they’ve got to get out.” We’ll talk about coming the right way in a future episode. But he’d say, “Everybody has to get out.” And then the memos and the official government documents that followed reflected that initiative that everyone’s a priority.

Jacob Tingen: The problem with everyone being a priority is that no one’s a priority. And so that has caused a slowdown in the number of immigrants that are currently being deported from our country. So you’ll see some news reports and they’ll say, “Well with record numbers of people approaching our southern border that’s leading to lower numbers of deportations because the administration’s limited resources are tied up.”

Jacob Tingen: That might be part of it. But Trump has been pretty active in hiring new immigration judges. I think we have a higher number of immigration judges than we did under Obama. And so we should be capable of deporting more people. But again, it’s this issue of when everybody’s a priority, no one is. And so in a strange roundabout way, Trump’s hard line stance has actually led to this world where we’re deporting fewer immigrants and we’re deporting fewer immigrants with criminal histories as well.

Jacob Tingen: So for those who like that argument, it actually means that that the U S is becoming a more dangerous place, oddly enough. And then of course many immigration advocates are in some ways, I guess, happy that fewer people are being deported. But from the Obama era approach of, “Let’s get rid of people with criminal histories,” that’s kind of hard to see how many people who support Trump’s policies wouldn’t support Obama’s results and wouldn’t see how Trump’s policies aren’t getting to the results they want.

Jacob Tingen: And so I just think that that’s a conversation that needs to be had. Shouldn’t we intelligently implement policies that lead to the results the majority of Americans want? Even though I think there are compelling arguments for keeping some immigrants here, even when they have criminal histories, I think the vast majority of Americans would say, “Well look, I’m fine with immigrants coming here. But if they are going to commit crimes and have criminal convictions, maybe they should face the music and face the consequences.”

Jacob Tingen: And yet a while, I think most Americans would agree with that sentiment, that’s not the results we’re getting under Trump’s hard line stance. So the results don’t match the position that he put forward. Now, I’m not saying that we need to deport more people, but I am just kind of pointing out that this exists, that it’s strange that a hard line stance has led to a result that most most Americans, and probably not even Trump himself, would like.

Jacob Tingen: And so at this point I just kind of want to round it out with a bit of a story. So I didn’t always like prosecutorial discretion and how it was enforced in the immigration courts, but I definitely appreciated that DHS attorneys, that’s the Department of Homeland Security attorneys under the Obama administration. They knew how to exercise compassion for immigrants who were in a tough spot. Unfortunately under Trump there is zero compassion for any immigrant under any situation.

Jacob Tingen: Now I will tell you about a case that I heard about recently, a small girl immigrant who had been brought over, and of course she’s a girl, so it’s not like … Young, minor child. So it’s not like she had a decision about having come to the United States, in removal proceedings, but she had a health condition and she had it diagnosed. And the hospital gave a letter that this young girl could present in immigration court.

Jacob Tingen: And the letter said, “Hey, this girl has a heart condition, a special heart condition that can be treated in the United States. It is our understanding that the treatment that she needs to live, to stay alive, is not available in her home country. Therefore, if she is deported, she will die.” Now this is shortly after Trump and his new priority memo was issued and we took this case up to the immigration court and said, “Hey, DHS, prosecutorial discretion please. This girl will die if she’s deported. Can we administratively close this case?” And the answer is no. The answer is no for any immigrant. Prosecutorial discretion and administrative closure is no longer available.

Jacob Tingen: Now through other mechanisms, the Trump administration has closed administrative closure in the immigration courts and that’s a whole other conversation. But at the time it was still available technically, it just wasn’t going to be endorsed by DHS attorneys. It wasn’t on the table, which is strange because I get that different departments have different priorities, but I think many people understand the context of prosecutorial discretion. Like I mentioned police earlier, frequently in criminal cases, people understand the concept of a plea deal that I can go in and even though I’ve been charged with something that’s kind of a bigger crime, I can frequently do community service, show remorse and maybe plead down to a lower charge.

Jacob Tingen: But that’s not even possible. It’s not even debatable under the Trump administration. That’s a problem. I think most people that are hearing this and that are here in the United States would agree, if somebody’s got a life here, they shouldn’t be as much a priority for deportation as those who have criminal convictions or those who just recently arrived.

Jacob Tingen: I think the Obama administration got it a little more right than we’re getting definitely under the Trump administration where everyone’s a priority and nobody gets the application of good principles like mercy in the midst of all this supposed justice.

Jacob Tingen: So that’s the Nation of Immigrants today. I hope that this discussion and prosecutorial discretion has opened your eyes a bit to what’s happening and to why it’s happening. We may talk about other reasons in the future as to why Trump is deporting fewer people than Obama, and maybe even debate whether that’s a good thing or a bad thing. But today’s conversation was mainly just geared to help you understand why it’s happening and what was happening under Obama versus what’s happening under Trump. So thanks again for listening to a Nation of Immigrants. Look for us on iTunes, YouTube, Facebook, and everywhere else. Thanks.

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President Obama: America is a nation of immigrants.

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