Published: September 18, 2013
By Mark Price

One in four cases handled by Charlotte’s Immigration Court results in immigrants being sent back into the community without prosecution, according to an independent survey of the nation’s immigration courts.

That accounts for nearly 1,200 people since September 2012, making Charlotte’s deferral rate among the highest in the nation for courts of similar size.

Immigration officials dispute the data, but not in a way you’d expect.

They estimate the number is likely higher, if you count cases in which immigration officers didn’t issue a notice for the immigrant to appear in court.

It’s called prosecutorial discretion, and the 20-month-old initiative involves postponing cases for immigrants who have lived and worked quietly in the country for years but were caught through a minor offense.

The point, say federal officials, is to clear the docket for cases involving violent or dangerous immigrants who need to be fast-tracked for deportation.

Prosecutorial discretion is encouraged by the Obama administration as a means of lessening the immigration court system’s substantial backlog of 342,000 cases.

However, it remains unclear why Charlotte’s rates are higher than those of comparable courts around the country, based on a survey published last month by the data-tracking system TRAC.

Guesses are plentiful.

It could be that Charlotte’s immigrant population has fewer violent criminals than other cities. Or that local immigrants tend to be long-term Charlotteans who lead otherwise quiet lives. Or that local law enforcement is more thorough in identifying and arresting undocumented immigrants.

The TRAC survey compared immigration courts with substantial backlogs and found Charlotte, Seattle and San Diego had the highest rate of prosecutorial discretion closures. All three had a backlog of between 4,300 and 5,100 cases last year, the survey said.

A quarter of the immigration cases in all three cities were handled via prosecutorial discretion, compared to a 7 percent average nationwide.

“There’s something different going on in Charlotte,” said statistician Sue Long, a co-director with TRAC. “All we know are the numbers, but I’m curious because it’s very unusual. It’s not because they have one of the country’s highest backlogs, because all the courts are all pretty much behind.”

TRAC did glean one other detail from the court data, she said. Most of the cases closed via prosecutorial discretion had been around for a very long time.

Gillian Christensen of the U.S. Immigration and Customs Enforcement wasn’t sure why Charlotte has a higher than average rate for prosecutorial discretion closures.

Christensen said it’s important to point out that none of those cases was dismissed and the immigrants were not given legal status in the country.

It’s simply a matter of removing their cases from the court docket for the time being, she said.

“Given our resources, ICE has the ability to move about 400,000 people a year,” she said. “It does not make sense for us to just move the first 400,000 we get. Let’s remove those who have the greatest impact on safety and security, the convicted criminals.”

She says 55 percent of the immigrants removed from the country since the start of fiscal year 2012 had been convicted of a crime. Many of the others were “egregious immigration law violators.” This includes people who fled deportation and got caught, or they were previously deported and re-entered the country.

An example of a recent Charlotte case handled with leniency is that of Holman Acosta, 29, a native of Honduras who was granted a “stay of removal” Friday after weeks waiting for deportation.

He had been held by ICE since June, after being arrested at a traffic checkpoint for driving without a license. Acosta, who had been deported once before, was driving his stepson home from a soccer game at the time.

Leisha Acosta, who is a U.S. citizen, said she won a temporary reprieve for her husband by noting that his arrest had put the family in a financial bind and contributed to her worsening health.

A stay of removal means he can stay at least a year, she said. The couple, married since 2010, is hoping immigration reform will be passed by Congress in the meantime.

“This gives us a year to find a way to make him a citizen, and I’m going to work as hard as I can to make it happen,” said Leisha, 35, who was arrested for blocking a street during a civil disobedience demonstration Thursday in Washington at an immigration reform rally.

“Until we know for sure, we’re saving up all our money,” she said. “If he can’t stay, I will go with him back to his country, and we’ll survive the best we can.”

ICE officials say an estimated 27,000 pending cases were identified as amenable to prosecutorial discretion, and 10,000 so far have been closed. An additional 6,300 cases remain open because the immigrants involved believed they had a legitimate right to stay and want their day in court, officials said.

Charlotte immigration attorney Philip Turtletaub said he’s had about five cases closed through prosecutorial discretion.

He believes court officials are being pressured from higher-ups to close more cases that way, and they’ll likely stay closed until the nation settles its ongoing debate over immigration reform.

“It doesn’t make sense to put a lot of people in deportation proceedings and in five or six months, you have immigration reform,” he said. “It’s just not a good use or resources. If there is immigration reform, a lot of those cases will be taken out of court because the people will be able to apply for their papers.”

The big question, he said, is how long the courts are willing to wait for Congress to act.

“The courts are not going to close thousands and thousands of cases and keep them closed forever,” he said.