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There seems to be yet another turning point for the much-touted “prosecutorial discretion” policy. In published decisions on Monday, the Ninth Circuit pointedly prodded the DOJ to consider prosecutorial discretion for five immigration cases on its docket. These are:
In each case, the court issued an opinion that stated:
In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attor- neys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecu- torial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehear- ing.
This is the first time in recent history that a federal court has actually told the government to get it together in the area of immigration law. Read between the lines and it says “Hey, aren’t you supposed to be using the prosecutorial memos you issued so we can all get on with doing more important things?” The dissenting opinion also reveals that the Court is doing this out of its own volition — the attorneys for the petitioners did not ask for stays of removal or prosecutorial discretion with the court:
What is more, the petitioner never even asked us for the audacious ruling we issue today. The majority thus needlessly catapults this court into a realm of decisionmaking from which it is constitutionally walled off.
I don’t think the shift is purely out of humanitarian interest or change of heart. The Ninth Circuit has a ridiculous number of immigration cases. It does not serve the judges well to spend their time writing opinions for cases where 1) people seem eligible for relief as a matter of discretion and 2) people could win relief after exhausting their options because there are well-organized activists willing to fight tooth and nail to stop every deportation.
No one would be talking about discretion or deferred action or stays of removal if it wasn’t for the undocumented youth movement so lets give credit where it is due.