Ninth Circuit: Obama Administration Must Put Up or Shut Up on Prosecutorial Discretion

The U.S. Court of Appeals for the Ninth Circuit, in an order joined by Judges Canby and Fisher (with a stinging dissent by Judge O’Scannlain), has pushed the Obama administration on the exercise of prosecutorial discretion as outlined in the June 2011 memorandum by Immigration & Customs Enforcement head John Morton:

“Luis Mata-Fasardo has filed a petition for panel rehearing in this matter. Mata-Fasardo has had a long-term presence in the United States and has two United States citizen children. He does not appear to have any criminal convictions.

In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehearing.”

The same panel entered a similar order in a number of other cases. See here, here, here, here. The motions panel appranetly decided to prod the Justice Department to live up to the much-publicized endorsement of the exercise of prosecutorial discretion in removal cases involving long term residents without criminal records. We shall see how the DOJ responds.

KJ