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Immigration Denver – Understanding Prosecutorial Discretion in Immigration Law


Understanding Prosecutorial Discretion in Immigration Law

Prepared by Stephanie A. Aretz, J.D.,

The Heise Law Office   1547 Gaylord St. Denver, CO, 80206    (303) 495-2013

On August 18, 2011. President Obama, through the Secretary of Homeland Security Janet Napolitano, made an announcement that could have a major impact on immigration policy and the lives of millions of immigrants and their family members in the United States.  The White House announced that it would use its discretion (called “prosecutorial discretion”) to review the 300,000 cases currently in removal (deportation) proceedings.  In an attempt to clear the seriously backlogged immigration court dockets and to better focus resources on high priority cases, all low priority cases may be administratively closed following review.  In short, prosecutorial discretion is about exercising good judgment. We have yet to see exactly when and how this plan will take effect.


What is prosecutorial discretion?

Prosecutorial discretion (“PD”) is the authority of a law enforcement agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.  In the immigration context, it is the authority of various immigration officials to choose whether to pursue the removal of an alien from the U.S.


What is the standard for PD?

In the immigration context, immigration enforcement authorities ought to “pursu[e] those cases that meet ICE’s priority for federal immigration enforcement generally.”  ICE’s priorities for enforcement are those aliens who pose a threat to national security, border security, public safety, and the integrity of the immigration system (see Morton memos).  ICE’s resources are limited.  It is therefore essential for it to act on its enforcement priorities.

What is the history behind PD?

PD is a basic principle of law enforcement, deciding when and how to enforce the law.  On June 17, 2011, the current ICE Director, John Morton, issued a new memorandum, reiterating the principles of the 2000 memo.  The new memo reinforces the importance of focusing ICE’s limited resources on its enforcement priorities, clarifies which officers and agents have PD authority, and lists the factors should be considered in deciding whether to exercise PD.  A second memo, issued the same day, emphasizes ICE’s general policy of not initiating removal proceedings against victims and witnesses to crimes.

On August 18, 2011, DHS Secretary Janet Napolitano announced a plan to create an inter-agency committee to review all 300,000 cases in removal proceedings, identifying low-priority removal cases and accelerating high-priority cases.  It is important to understand that this is not a new law, nor is it an amnesty.


When can immigration officials exercise PD?

PD may be exercised at any time, though it is preferable to pursue it at as early a stage as possible.

What factors do immigration officials consider?

The Morton memo enumerates specific factors that immigration officials should consider, but emphasizes that the list is not exhaustive.  The listed factors include the person’s immigration history and status, length of residence in the U.S., criminal history, and humanitarian concerns, such as U.S. citizen children, serious mental or physical illnesses, pursuit of education, etc.  If a person believes that he or she may benefit from a favorable exercise of PD, he or she should contact an experienced immigration attorney as soon as possible.

Relevant Resources:

Janet Napolitano “Letter to U.S. Senator Dick Durban” (August 18, 2011).

John Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement (ICE) “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011).

 John Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement.(ICE) “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (June 17, 2011).

John Morton, Assistant Secretary, ICE “Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal of Aliens” (March 2, 2011).

Doris Meissner, commissioner, INS, “Exercising Prosecutorial Discretion” (Nov. 17, 2000).

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