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Ninth Circuit Requests Clarification on Prosecutorial Discretion in Immigration Appeals

By Robyn Hagan Cain | Last updated on

Curious as to how the Obama administration wants its new prosecutorial discretion directive interpreted in immigration appeals? So is the Ninth Circuit Court of Appeals.

On Monday, a three-judge panel of the Ninth Circuit halted the deportation of seven appellants pending clarification from the Obama administration about the prosecutorial discretion policy it announced in 2011.

Last June, U.S. Immigration and Customs Enforcement Director (ICE) John Morton announced that immigration authorities "would stop detaining and deporting some illegal immigrants who have close family and community ties and no criminal records," reports the Contra Costa Times.

While Customs and Border Protection, ICE, or U.S. Citizenship and Immigration Services may now exercise prosecutorial discretion when deciding how to proceed in an immigration enforcement action, the Obama administration has been slow to implement the new policy.

The lead party in the Ninth Circuit case, David Aranda Rodriguez, has lived in the United States for more than two decades and cares for two children who are U.S. citizens, reports the Associated Press. The Ninth Circuit Court of Appeals has asked the Obama administration to clarify by March 19 whether it intended to exercise prosecutorial discretion in cases like Aranda Rodriguez's, and whether prosecutorial discretion might affect motions for rehearing in such cases.

Bernadette Connolly, Aranda Rodriguez's lawyer, says that her client is "the kind of person Mr. Obama and also the Morton memo is talking about," according to the Contra Costa Times. Judge Diarmuid O'Scannlain, however, disagreed. As the lone dissenter from the decision, O'Scannlain criticized the panel for injecting itself into policy matters rather than ruling on the law.

"The majority thus needlessly catapults this court into a realm of decision-making from which it is constitutionally walled off," O'Scannlain wrote.

The Obama administration's response could prompt significant changes in how immigration appeals are adjudicated.

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