What is prosecutorial discretion?
Every day, law enforcement agencies and prosecutors make decisions about which cases they will pursue and how they will pursue them based in part on the seriousness of the case, the threat to public safety, and the availability of resources to pursue the case. The exercise of this judgment is called prosecutorial discretion. It may take the form of pursuing or declining to pursue a case or to bring lesser charges against a suspect.
Why should ICE, like other law enforcement agencies, use prosecutorial discretion?
With its limited resources and the competing demands on it, the Department of Homeland Security (DHS) cannot remove all 10 or 11 million individuals who are believed to be present in the United States without valid immigration status. Therefore, in June of 2011, Immigration and Customs Enforcement (ICE, chiefly responsible for enforcing immigration laws in the interior of the U.S.) instructed its personnel to begin to utilize prosecutorial discretion to focus enforcement on cases deemed a high priority for the agency—cases involving, among other factors, threats to public safety or to national security. It makes sense for an immigration law enforcement agency to direct its resources first at individuals who might pose a danger to the public. Any other law enforcement agency would do the same: choosing to focus on dangerous individuals first before pursuing cases of individuals with minor infractions.
The immigration courts now have a backlog of 300,000 cases. Using prosecutorial discretion to sort through this overwhelming workload is a valuable tool to organize the workload to speed the removal of potentially dangerous individuals, while deferring cases of individuals who pose no threat.
How is ICE implementing its prosecutorial discretion?
The factors that ICE considers to determine whether someone should merit a favorable exercise of prosecutorial discretion were set out in two memos issued in June of 2011 (here and here), drafted to help officers make decisions about which cases to pursue. The memoranda state that specific, individual, compelling factors should be considered when weighing how to prioritize cases for deportation. For example, a person who is the primary caretaker of a child or a relative with a disability, even if in the country illegally, might be low on the priority list for prosecution.
In November of 2011, ICE announced it was beginning a review of the 300,000 cases waiting for adjudication in immigration court, commonly known as the backlog. ICE’s head attorney issued guidance to all ICE trial attorneys responsible for pursuing deportation cases directing them to begin a review of pending and incoming cases of individuals that: had not yet been issued a charging document (to begin court proceedings); were awaiting an initial hearing in court; were not in ICE detention; or were scheduled for a hearing before June 17, 2012. Two pilot programs were established in the immigration courts in Baltimore and Denver, running from December 4, 2011, through January 13, 2012, after which time ICE was to assess the data from the pilot programs and make any adjustments before continuing with a review of cases.
Also in November, United States Citizenship and Immigration Services (USCIS) issued a memorandum setting out the circumstances under which the agency would issue the document that begins removal proceedings (a Notice to Appear), or would refer a case to ICE, when, in the course of its work processing applications for immigration benefits, the agency encountered cases involving public safety threats, individuals with criminal convictions, or individuals engaged in fraud.
Why is prosecutorial discretion good for the country?
During a time when our nation is looking to cut back on wasteful spending, it makes sense to prioritize how we expend law enforcement resources. Our nation needs a smarter and more fiscally responsible immigration enforcement strategy, while we wait for Congress to make changes to the law to make the immigration system more realistic.
What happens to an individual offered prosecutorial discretion?
An exercise of prosecutorial discretion can take many forms: declining to pursue deportation charges, administratively closing a pending deportation case, waiving appeal, or agreeing to a stay of removal. When a case is administratively closed, it is placed on ICE’s back burner. Administrative closure does not confer any legal status, but rather leaves the individual in legal limbo. Still, it does allow the individual to stay in the country without fear of being picked up by ICE and removed from the country. Prosecutorial discretion allows for positive equities to be considered by ICE—such as whether an individual has U.S. citizen children. This could help keep families together.
What are our concerns about the implementation of prosecutorial discretion?
Four months after ICE began its review, only a very small number of cases had been administratively closed. At a hearing in March before the House Subcommittee on Appropriations, the Director of ICE, John Morton, testified that 150,000 cases had been reviewed by that time, but only 1,500 had been administratively closed. This is only one percent of all cases and a much lower percentage than the 12 to 16 percent of cases closed as initially indicated in the Baltimore and Denver pilot programs. It would be greatly disappointing for this new policy to have such a small impact for individuals in proceedings who are not priority targets for immigration enforcement. Such a small number of cases closed would have next to no impact on reducing the backlog of cases in immigration courts—one of the major goals of DHS in instituting this policy.
Individuals who have their case administratively closed should be able to apply for work authorization. While the elimination of the threat of imminent deportation is a significant relief to individuals with cases pending in immigration court, there remains a corresponding need for individuals whose cases are closed to be able to support themselves and their families by working and contributing to society. In order to work legally, they need work authorization.
All individuals in removal proceedings should be eligible for prosecutorial discretion. Cases of individuals who are currently in immigration detention deserve as robust a review of their circumstances as individuals who are not detained. (John Morton testified at that same previously-mentioned March hearing that only six to seven individuals in detention had been granted prosecutorial discretion.) Additionally, individuals who have already been issued a final removal order should have an opportunity to have their case reviewed based on individual circumstances. The same resource priority issues are present in the cases of individuals who are detained or have removal orders.
DHS should clarify to its personnel and the public that while there are no “categories” of cases that automatically trigger a favorable exercise of discretion, so too no “categories” of cases should be excluded from consideration, as long as the individuals are screened based on the prosecutorial priorities ICE says it is following.
To maximize effectiveness, prosecutorial discretion must apply uniformly across all the agencies in DHS that enforce our immigration laws. To date, Customs and Border Protection (CBP) has released no public information to describe how its officers and agents will exercise their prosecutorial discretion.
Finally, the Departments of Homeland Security and Justice (which administers the immigration courts), have done little in the way of clearing up public confusion about new policies and practices regarding prosecutorial discretion. This confusion creates opportunities for unscrupulous actors to prey on immigrants who may mistakenly think the new policy creates opportunities to gain legal status.
 House Appropriations Subcommittee on Homeland Security on Proposed Fiscal Year 2013 Budget for the Immigration and Customs Enforcement, Testimony of Director John Morton, March 8, 2012, available at, http://appropriations.house.gov/UploadedFiles/HHRG-112-AP15-JMorton-20120308.pdf.