DHS does not track its uses of prosecutorial discretion in immigration enforcement, which may compromise national security and public safety, the Department of Homeland Security’s (DHS) Inspector General (IG) stated in an unusually harsh audit report released this week.
The IG stated it found “Prosecutorial discretion is a tool that is meant to be used on an individual basis, but has instead been applied to entire categories of unlawful immigrants by the Obama administration,” and that “DHS uses prosecutorial discretion in deciding to what extent it will enforce immigration laws, including whether to place aliens in or take them out of the removal process.”
“However,” the IG’s audit found, “DHS does not collect and analyze data on the use of prosecutorial discretion to fully assess its current immigration enforcement activities and to develop future policy.”
“Although the office of Policy is responsible for developing department-wide policies and programs, DHS has not required this office to gather or use data to assess the effect of prosecutorial discretion on immigration enforcement activities.”
The IG also said DHS does not have a mechanism to continuously monitor its use of prosecutorial discretion and improve future policy.
“As a result,” the IG told Congress, “DHS may not be using its significant investment in immigration enforcement as efficient as possible.” DHS also may be “missing opportunities to strengthen its ability to remove aliens who pose a threat to national security and public safety."
The IG’s audit also stated that, “Although DHS reports immigration enforcement data such as alien apprehensions, detentions, and removals, it does not include the components’ use of prosecutorial discretion in its reports.”
Immigration and Customs Enforcement (ICE) also “could not provide the number of Deferred Action for Childhood Arrivals (DACA)-eligible individuals it has released, but it recorded its use of prosecutorial discretion … ICE officials noted that field office personnel do not always record their use of prosecutorial discretion because they make these decisions daily and it would be too time consuming to record every occurrence,” the IG said.
The IG further determined that, “When applying prosecutorial discretion, ICE field office personnel said they might not always have access to an individual’s criminal history in his or her country of origin. As a result, aliens convicted of or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be identified as a DHS enforcement priority.”
The Inspector General went on to note that, “As of September 30, 2014, US Customs and Immigration Services reported it had approved 632,855 DACA requests and Customs and Border Protection’s Office of Border Patrol reported it had released 650 DACA-eligible individuals.”
“Even though the components collected this information, DHS did not gather and analyze the data to assess its DACA policy.”
Furthermore, “ICE could not provide the number of DACA-eligible individuals it had released, but it recorded its use of prosecutorial discretion,” the IG found. “For example, in Fiscal Year 2014, ICE recorded 12,757 instances in which an ICE officer, after interviewing an individual and determining he or she was not an enforcement priority, used prosecutorial discretion to release the alien. However, according to ICE, the prosecutorial discretion data may not always be accurate and complete.”
Why? Because “ICE officials noted that field office personnel do not always record their use of prosecutorial discretion because they make these decisions daily and it would be too time consuming to record every occurrence. ICE officials also reported that prosecutorial discretion may be exercised at various points in the removal process; therefore, multiple instances of the use of prosecutorial discretion may be recorded for the same individual.”
Continuing, the IG found that, “Although DHS reports immigration enforcement data such as alien apprehensions, detentions and removals, it does not include the components’ use of prosecutorial discretion in its reports.”
Disturbingly, the IG said its audit “identified a potential issue that could affect DHS employees’ ability to make well informed decisions when exercising prosecutorial discretion,” explaining that, “when applying prosecutorial discretion, ICE field office personnel said they might not always have access to an individual’s criminal history in his or her country of origin. As a result, aliens convicted or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be identified as a DHS enforcement priority.”
Border Patrol officials told Homeland Security Today on background they know they’ve had to release Central American gang members like MS-13 under the DACA policy because they aren’t able todetermine their criminal histories.
“We know we’ve had to release dangerous gang members who’ve claimed to be underage for purposes of DACA because we don’t have their criminal histories to turn them back around the other direction; and there have been many we’ve had to let go,” one senior Border Patrol agent said.
The IG “recommended DHS develop and implement a plan to collect, analyze and report data on the use of prosecutorial discretion to assess immigration enforcement activities, improve policy and increase transparency.”
DHS responded to the IG’s audit, saying it agreed with the IG’s “recommendation and indicated it plans a multi-pronged approach to assessing and accounting for DHS immigration enforcement efforts.”
“Not only are President Obama’s unilaterally-created immigration policies and programs unconstitutional, their implementation has proved to needlessly place Americans and our country at risk,” said House Committee on the Judiciary Chairman Bob Goodlatte (R-Va.). “As confirmed by [the] Inspector General report, the Department of Homeland Security does not track its use of prosecutorial discretion nor does it always conduct thorough background checks on the individuals benefitting from the administration’s lax policies.”
“As a result,” Goodlatte said, “the American people are left in the dark about the effects of the administration’s immigration policies and dangerous criminal aliens who have committed a crime in their home country may be able to find amnesty in the United States. While it is inexcusable that DHS does not monitor the use of prosecutorial discretion, it’s even more important that the Obama administration end its reckless policies.”
The House Judiciary Committee has approved legislation – the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 1148) – that would require DHS to report to Congress annually on the administration’s use and abuse of prosecutorial discretion, among many other provisions.
The Judiciary Committee has published on its Website a series of reports it says detail the consequences of Obama’s “unilateral changes to our immigration system, allowing millions of unlawful immigrants to evade immigration enforcement. These actions are not without cost: they ignore the will of the American people and violate the Constitution, allow criminal aliens to evade the law, make our communities less safe, punish legal immigrants, and encourage more illegal immigration.”
