Homeland Security's Inspector General: Agency Has Little to No Data on How It Uses Prosecutorial Discretion & That's Bad

A recent audit of the Department of Homeland Security's use of prosecutorial discretion says the agency hasn't properly gathered data on how its implementing the policy nor the methods it uses to back up its decisions in a case-by-case basis.

The Department of Homeland Security's most recent removal guidelines—released Nov. 20, the same day President Obama issued a series of immigration executive orders—says that felons are at the forefront of deportation. But many undocumented immigrants without a criminal record, and who pose no threat to national security, are at the mercy of this so-called prosecutorial discretion, a memo that was issued in 2011. (DHS Inspector General John Roth points out that the audit''s findings were finalized in September 2014, so any changes after are not documented on this specific report.)

DHS' 2011 memo was supposed to clarify what details should be considered to carry out such discretion, and whom exactly is entitled within the agencies to decide people's fate in this country. But that hasn't been the case.

In the report, Roth suggests the department: A. Present reliable information and numbers; B. Ensure it can present solid evidence to support reasons for apprehension and removal, as well as decisions to close certain cases and grant stays in the country; C. Improve access to a person's criminal record in his or her country of origin; among other proposals he presented today to the U.S. House's Subcommittee on National Security and Health Care, Benefits and Administrative Ruling.

Particularly with Immigration and Customs Enforcement, the implementation of prosecutorial discretion is very up-and-down (I wrote about it last month, here). Undocumented immigrants who don't meet the requirements for removal have been deported or have deportation orders open. Then, there are the few who have gotten their cases closed for that reason. 

"Uneven or inconsistent policy enforcement can have a negative effect on DHS' immigration enforcement mission," the report says. "Here, because the Department does not collect data on, much less monitor, the use of prosecutorial discretion, we are unable to determine whether the Department is using prosecutorial discretion consistently or fairly."

Here is a minor portion of Roth's report, which you can read on its entirety here:
DHS Needs a Mechanism to Evaluate the use of Prosecutorial Discretion

As DHS moves forward and revisits immigration policies and programs, it should ensure it can support its decisions with solid data. Once the Department implements a plan to consistently collect and maintain reliable prosecutorial discretion data, it should develop a mechanism to monitor and get feedback on the use of prosecutorial discretion to make sure the correct decisions are being made. Such a mechanism would help DHS accurately assess the results of policy decisions and make needed changes.

A feedback mechanism for the use of prosecutorial discretion could help DHS identify gaps, set goals, determine budget requirements, and provide information to improve program performance. In terms of overall immigration enforcement policy, such a mechanism could help compare the results of changes to the policy to goals and objectives, identify needed improvements, and develop sound future programs and policies.

In addition to assisting in the overall policy-making process, capturing the right information would allow the Department to ensure the proper and evenhanded application of the policies that do exist. As it stands now, there is no mechanism by which to assess the reasonableness of an individual officer’s exercise of discretion, to compare prosecutorial discretion decisions for similarly situated aliens, or to compare the use of prosecutorial discretion by various field offices. This data, if collected, could also be used to evaluate the performance of individual officers or field offices.

Uneven or inconsistent policy enforcement can have a negative effect on DHS’ immigration enforcement mission. 


Here, because the Department does not collect data on, much less monitor, the use of prosecutorial discretion, we are unable to determine whether the Department is using prosecutorial discretion consistently or fairly. 

DHS Needs Better Access to Aliens’ Criminal History

During our audit, we identified a data access issue that may impede sound prosecutorial discretion decisions. ICE field office personnel said they are not always able to access aliens’ criminal histories in their countries 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 placed in or may inadvertently be taken out of the removal process. The information components use to make prosecutorial discretion decisions was beyond the scope of our audit; however, we encourage the Department to address this potential issue and take corrective action as necessary.
Roth says the department agrees to the recommendations and that DHS is working on strategies to make improvements, all of which will be presented to the Inspector General's Office.

"We believe such a strategy is particularly important given that over the past two fiscal years, ICE, Customs and Border Protection, and U.S. Citizenship and Immigration Services collectively received, on average, about $21 billion annually. The Department must spend this significant investment efficiently and make decisions based on the best available information," Roth says in the report. "The Department also relies on prosecutorial discretion to focus resources and has implemented a number of prosecutorial discretion policies; data analysis is essential to developing sound future immigration policies. By analyzing prosecutorial discretion data, the Department could potentially strengthen its ability to remove aliens who pose a threat to national security and public safety. Moreover, reporting all immigration enforcement actions would provide greater transparency and promote public confidence in the Department’s immigration enforcement mission."