IG Report: Failure to Track Releases Under ‘Prosecutorial Discretion’ Could Have National Security, Public Safety Implications

May 14, 2015

The Inspector General of the Department of Homeland Security released a report finding that DHS does not consistently track its uses of prosecutorial discretion in immigration enforcement, which may compromise national security and public safety. Commenting on the report, House Judiciary Committee Chairman Bob Goodlatte, R-Va., said “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.”

The report says DHS has mostly kept data on those released from federal custody due to eligibility for the Deferred Action for Childhood Arrivals, but has not on others released under its policies on prosecutorial discretion. Beginning in 2011, the Obama Administration told DHS Agents to forego the normal procedures required under law for processing and deporting illegal aliens who fell into certain classes. Agents were to release certain illegal aliens under a grant of prosecutorial discretion despite the fact that such authority had never been used in this manner nor authorized by Congress.

The report said DHS had undercut immigration enforcement through executive decree but, “did not include a requirement to collect data on prosecutorial discretion for annual reporting. This made it impossible for the agency, or Congress, to accurately assess the ramifications of its policy decisions. “The Department may also be missing opportunities to strengthen its ability to remove aliens who pose a threat to national security and public safety,” the report said

Chairman Goodlatte issued a statement citing other key findings from the IG Report:

“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.”
“ICE could not provide the number of 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 Department does not have a mechanism to continuously monitor its use of prosecutorial discretion and improve future policy.”
“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.”

In his statement, Chairman Goodlatte said, “As confirmed by today’s 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, 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.”