Recently, I had to cross a boulevard. There were two lanes going in each direction with a center island. The crosswalk was halfway down the block, about 200 yards away. So, I decided to jaywalk and cross the boulevard where I stood.
I crossed the first two lanes and got to the center island, waiting for the traffic to clear, so I could cross the rest of the boulevard when a patrol car came by. He stopped to let me pass, but the patrol car lit up like a Christmas tree with white, red, and blue lights flashing for my benefit. I was about to get a ticket for jaywalking.
The officer got out of the patrol car and explained the dangers of jaywalking on a busy thoroughfare, such as I could get run over, or if a car stopped for me, they could get rear-ended. He concluded by saying, “I’m not going to ruin your day by giving you a ticket, and I’m certainly not going to waste my time giving out tickets for jaywalking when there are more serious crimes out there. But I want you to take to heart what I just told you.” Naturally, I was grateful that I was not given a ticket.
The point of this encounter is the officer exercised “prosecutorial discretion.” And I wish DHS would take a lesson from this police officer. I admit I broke the law by jaywalking, and the officer had every right to give me a ticket. But the officer decided the violation was not so serious as to take up (or waste) his time, when there are more serious crimes out there.
That is the essence of “prosecutorial discretion,” where although someone may have broken the law, their violation is not so serious that the government should waste time, money, and resources “enforcing the law.” The same policy used to be true in immigration. Certainly, everyone who is out of status has violated the law, but DHS would exercise prosecutorial discretion and not go after the mere status violators, who pose no threat to society. Instead, they were concentrating their efforts on removing the felons, rapists, murderers, terrorists, etc.
Unfortunately, the current administration views jaywalkers and felons in the same light: they broke the law and DHS must enforce the law. The government practices “zero-tolerance,” and is refusing to exercise any prosecutorial discretion. USCIS started a policy of putting people in deportation if USCIS denied any immigration benefit, such as an extension of status or a denial of adjustment of status on a minor technicality. Court rooms, as well as detention facilities, are overflowing because DHS is not exercising prosecutorial discretion, but instead is going after everybody. It may take years before a person can finally have their day in court.
If everyone is a “priority” for removal, then DHS is wasting valuable resources by treating jaywalkers the same as terrorists. Instead, like the police officer who lectured me, they should start exercising prosecutorial discretion and focus on the serious immigration violators and criminals, and not waste their time effectively going after jaywalkers.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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