Criminal Defense of Immigrants

(A)  In General.  Since the passage of IIRAIRA in 1996 removed so much discretion from the INS, DHS, and immigration judges, immigrants are increasingly requesting deferred action status in difficult cases.[198]  Over time, the immigration authorities were asked to extend the use of “prosecutorial discretion” in various ways in worthy cases, often by agency officers and the same Congresspersons who pushed to create such stringent laws.[199]  The BIA stated, in a case that had nothing to do with prosecutorial discretion, that it believed that the agency retains the prosecutorial discretion not to bring removal proceedings, even in cases involving crimes.[200]  On her last day in office, INS Commissioner Doris Meissner signed a memorandum authorizing the use of prosecutorial discretion to decline to deport the deportable in appropriate cases.[201]

[198] See Simmons, Deferred Action Status: The Last Vestige of INS Discretion, Bender’s Immigration Bulletin 521-23 (July 1, 1997).

[199]  See, e.g., Paul Virtue (former INS General Counsel), Restoring Fairness: A Look at Prosecutorial Discretion, Bender’s Immigration Bulletin 555-565 (June 15, 2000); Letter from Robert Raben, Assistant Attorney General, Department of Justice, Office of Legislative Affairs, to 28 members of the House of Representatives dated January 19, 2000 (available on AILA InfoNet) (in responding to Congressional request that INS exercise more prosecutorial discretion, the DOJ emphasized the limits left to agency discretion by the 1996 law).

[200] Matter of Bahta, 22 I. & N. Dec. 1381 (BIA 2000).

[201] The memorandum was dated November 27, 2000 and appears in 77 Interpreter Releases 1661 (Dec. 4, 2000).  See also Memorandum for the Commissioner from Bo Cooper, INS General Counsel, INS Exercise of Prosecutorial Discretion, reprinted in 77 Interpreter Releases 950, 961 (July 17, 2000) (explaining legal basis and extent to which INS may exercise prosecutorial discretion in its enforcement activities).