Debate Forum Left, 8/30/11

Obama’s prosecutorial discretion: Setting our priorities straight

By  Rana Odeh

Rana Odeh

Rana Odeh

The Obama administration has announced a policy change in immigration that would suspend the deportation of several thousand undocumented immigrants who pose no threat to the U.S. and meet certain criteria based on the Morton Memo, which are similar to ones proposed for the DREAM Act. The purpose of the administration’s use of “prosecutorial discretion” in judging undocumented immigrants on a case-by-case basis is to focus on the national security of the U.S. and to more effectively use immigration “removal” resources.
Before we answer any philosophical questions about the validity of the Obama administration’s use of prosecutorial discretion in the enforcement of federal immigration laws, let’s look at what prosecutorial discretion entails and decide if the administration is permitted to exercise it. According to the Immigration Policy Center (IPC), prosecutorial discretion “is the authority of an agency or officer charged with enforcing a law to decide whether to enforce the law in a particular case.”

In the 1985 case of Heckler v. Chaney, the Supreme Court decided that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Essentially, prosecutorial discretion is exercised when any government official has to decide whether to enforce a law against someone, and according to the IPC, “good stewardship of limited government resources, balancing government priorities, and humanitarian concerns are all legitimate reasons for exercising discretion.” It is clear that the executive branch, in addition to a wide range of agencies, has the authority to use prosecutorial discretion in shifting immigration policy.

It is important to note that the Obama administration has not changed any law and does not plan to give amnesty to undocumented immigrants; its decision solely delays the removal of immigrants who have not committed any crime in the U.S. and who meet certain criteria. Congress will then review each case and decide whether to “remove” each individual. Obama’s announcement is not a substantial change in U.S. immigration law, but rather a shift in the administration’s priorities.

Those who are huffing and puffing about tightening immigration enforcement along an increasingly dangerous Mexican border are missing one key element: resources. During a recession when resources are limited and Immigration and Customs Enforcement (ICE) is unable to enforce immigration laws on every undocumented immigrant residing in the U.S., it seems to be a wise decision to focus on criminal immigrants first. That is the first and most important criteria to consider when deciding against whom to enforce the law. I don’t think we need to worry about undocumented immigrants who entered the U.S. under the age of 15, college students, undocumented immigrants who are patriotically serving in the U.S. military, nursing/pregnant mothers, the elderly, victims of crime, immigrants who have strong ties to the U.S. or any undocumented immigrant with no criminal history and who poses no threat to the U.S. With that criteria set in place, it eliminates a large group of immigrants that ICE officials need to focus on, so they can more effectively focus on undocumented immigrants who actually pose a threat to the U.S.

The Obama administration made this policy shift after it hit a modern record high number of deportations; approximately 800,000 in the past two years. It is safe to say that the 2012 elections have something to do with the decision to use prosecutorial discretion at this moment. The Latino community has grown increasingly vocal about their disappointment in President Obama’s immigration policy, and the very large community could play a great role in Obama’s 2012 bid for re-election. Currently, this policy change leaves undocumented immigrants in legal limbo. Their cases are delayed so they do not face deportation but they have not been granted positive immigration status, which can only be conferred by Congress. The timing of the decision is superb, but the administration needs to make more substantial changes to immigration law in order to grant amnesty to the immigrants who meet the above-mentioned criteria.

Regardless of Obama’s personal reasons for his decision, he did a good thing for a great community, and that is all that matters. Trying to attack President Obama’s intentions for the immigration policy shift is the equivalent of complaining that he is trying to create jobs to gain the vote of the unemployed; politics aside, he made an undeniably just decision.

Immigrants play a vital role in enriching American culture and in the development of the U.S. economy.

U.S. Senator Dick Durbin (D-IL), Assistant Majority Leader, phrased it nicely: “The Obama administration has made the right decision in changing the way they handle deportations of DREAM Act students. These students are the future doctors, lawyers, teachers and, maybe, senators who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The administration’s new process is a fair and just way to deal with an important group of immigrant students.” I would argue all immigrants, not just students, should be treated as individuals on a case-by-case basis.

Rana Odeh is a graduate of the University of Dayton with a degree in English and Philosophy.  Her research and writings focus on issues of race, class and gender.  She can be reached at

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