Prosecutorial Discretion With Rubber Stamps

November 24th, 2014

In my previous post, I questioned whether there can in fact be “prosecutorial discretion” when a rubber stamp is used. Specifically, if a process is set up whereby everyone meets certain clerical requirements–whether paperwork is correctly filed–can the process really be subject to any discretion? This is ministerial, not prosecutorial. As an example, I cited a Brookings study that showed that only 1% of DACA applicants were denied.

Some more research suggests that the stamps were more rubbery than I thought. Judicial Watch obtained through FOIA requests a number of documents concerning how DHS made the process of granting DACA deferrals even easier.

Some of the findings include:

  • Field offices were asked to conduct only “lean and lite” background checks rather than full TECS background checks.
  • Applicants without ID were still to be processed for biometric processing.
  • There were widespread waivers of the fees.

And it goes on and on. The general gist is the procedures were set up to grant as many of the applications as possible. Despite the insistence on prosecutorial discretion, the process seemed stacked to defer everyone who meets the bare clerical requirements, and even then defer those that do not.

To make something clear, when discussing the deferral of millions, using discretion to go *above and beyond* the criteria to defer more does not count as the type of discretion we are talking about. That poses an even greater “special risk” when the minimum criteria set up are not complied with. The valid discretion at issue here, would be to *not* defer people for reasons or factors particular to the case. It seems the Administration’s policy was to eliminate as much discretion to deny, and maximize the discretion to grant.

The memo concerning the 2014 IAEA uses similarly capacious language as the 2010 memo. There’s no reason to think there will be any additional room for agents to deny applications. The presumption will be, grant everything that can conceivably be granted. Plus, the same overworked offices trying to handle 1 million applicants will now be swamped with 4 million. This process may be automatic.

Even if the OLC’s memo is correct that a broad policy of deferral is permissible so long as cases are adjudicated on a case-by-case basis, on the ground,  the facts are very different.