Local U.S. immigration lawyers opt more for discretion

Lawyers for U.S. Immigration and Customs Enforcement in Philadelphia have nearly doubled their use of the sparingly used prosecutorial discretion to close deportation cases this year, a new study shows.

The trend, which grants relief from deportation to a larger pool of undocumented immigrants, won praise from some local immigration lawyers, and concern that it could end abruptly if President Obama's executive actions on immigration are nullified in the hotly contested federal court challenge playing out in Texas.

The Philadelphia lawyers have used the option in almost 20 percent of cases so far in 2015, up from about 10 percent in recent years, according to the study.

"I like Philly's numbers, but can't explain them," said immigration lawyer Thomas Griffin. "I got a few PDs [discretionary closures] this year" when the government closed cases deemed eligible for executive action. "But I think we will see fewer PD grants depending on how the [Texas] litigation ends."

Obama's executive actions - a new deportation-relief program for eligible parents of permanent residents, and expansion of an existing program for some immigrants who came illegally to the U.S. as children - are on hold at the moment because of an injunction issued by the Texas court.

ICE lawyers have, however, been instructed to implement the third piece of the executive actions: Obama's enforcement-priorities memo. That document says cases should be evaluated individually, with prosecutorial discretion when appropriate.

Mark Krikorian, director of the Center for Immigration Studies, a Washington group that promotes tough restrictions on immigration, said he suspects the near doubling of PD closures in Philadelphia - and increases in other jurisdictions - are driven by politics, plain and simple.

"It's a directive from on high to close these cases and use prosecutorial discretion as a pretext," he contended. "It's appalling."

Rep. Daryl Metcalfe (R., Butler), Pennsylvania's harshest critic of illegal immigration, spoke similarly.

"It's [closure by] executive fiat," he said, "not prosecutorial discretion."

Asked to comment, a spokeswoman for ICE in Philadelphia did not address the reason for the near doubling of PD closures.

Among the nation's 63 immigration-court jurisdictions, Philadelphia ranks fifth for the percentage of cases closed by prosecutorial discretion, according to data obtained under the Freedom of Information Act by Transactional Records Access Clearinghouse, a Syracuse University group that specializes in data analysis. TRAC's study was released two weeks ago.Philadelphia's fifth place puts it behind Tucson; Los Angeles; Atlanta; and Bloomington, Minn., which is home to Asian, Latino, and Liberian communities. The ranking puts Philadelphia well ahead of such typical migrant magnets as El Paso, New Orleans, San Diego, and Chicago.

Moreover, using discretion to close 18.1 percent of immigration cases since Jan. 1, Philadelphia substantially outpaced the national PD closure rate of 8.3 percent.

Brennan Gian-Grasso, vice secretary of the Philadelphia chapter of the American Immigration Lawyers Association, said he appreciates that ICE lawyers in Philadelphia use "open eyes" to evaluate cases and close some on their initiative.

"We are lucky in Philadelphia," said Gian-Grasso, citing as an example one of his clients, a Mexican man whose daughter is a U.S. citizen.

"He is a pizza maker. He pays his taxes. He is not a danger to the community," Gian-Grasso said.

But the man faced deportation after a minor brawl with another man brought to light his illegal residency in Norristown since 2003.

As the parent of an American child, and having lived here more than a decade, the man could have been eligible for relief under Obama's executive action, Gian-Grasso said.

So taking that into account, along with Obama's priorities memo, the Office of Chief Counsel in Philadelphia, which prosecutes local immigration cases, this year ceased efforts to deport him.

If prosecuted, Gian-Grasso said, the client might have lost, appealed, and taken up valuable court time and government resources. By offering him relief, he said, the government showed it can "pause the proceeding and let him be a productive member of society."

Sometimes, Gian-Grasso said, it is only a pause.

Cases halted by discretion "aren't gone, they are sleeping," he said, quoting a local judge. They can be instantly awakened if the person commits another offense.