Prosecutorial Discretion

Prosecutorial Discretion has always been a tool at the disposal of immigration officials. The determination is wholly in the control of the Department of Homeland Security. A non-citizen cannot affirmatively apply for this benefit under any provision of the Immigration and Nationality Act. Nonetheless, prosecutorial discretion offers non-citizens an immediate benefit. After all, a non-citizen is not removed from the country once the Department of Homeland Security uses prosecutorial discretion on an individual case.

What is Prosecutorial Discretion

ICE has limited resources to remove every person that violates the United States Immigration laws. As a result, they prioritize cases. Prioritization is effectuated through “prosecutorial discretion,” which, according to ICE, means “the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.” Practically speaking, prosecutorial discretion means an agency can choose whether or not to detain an individual, commence removal proceedings against that individual, or continue removal proceedings against that individual.

Why is Prosecutorial Discretion Important

The reason that prosecutorial discretion is important is because it provides yet another option to avoid removal proceedings. Although the ultimate decision of whether to exercise prosecutorial discretion lies with the Department of Homeland Security and its agencies, the result is significant. An agency may refrain from issuing a Notice of Detainer to a local county jail, cancel a Notice to Appear before an Immigration Judge, decide who to release on bond, dismiss a court case, pursue an appeal in a case, etc.

How Is Prosecutorial Discretion Applied

Prosecutorial Discretion is applied by weighing a variety of factors. According to the memorandum issued by ICE on June 17, 2011, the following factors should be taken into account when deciding whether to exercise prosecutorial discretion: 1) the agency’s civil immigration priorities; 2) person’s length of presence in the United States; 3) circumstances surrounding a person’s entry into the United States, 4) a person’s age at the time of entry into the United States; 5) a person’s educational pursuits; 6) a person’s military service; 7) person’s criminal history; 8) a person’s immigration history; 9) national security concerns or threats; 10) a person’s family ties in the United States; 11) a person’s family ties in his or her home country; 12) a person’s current age; 13) a person’s primary caregiver responsibilities; 14) whether a person has a U.S. citizen or legal permanent resident spouse, child, or parent; 15) the health conditions of a person’s family members; 16) whether a person’s removal is unlikely due to their national origin; 17) whether a person has relief from removal available; 18) whether a person is eligible for an immigration benefit due to being a victim of criminal activity, human trafficking, or persecution.; 19) whether a person is cooperating with a criminal investigation or prosecution.

Who May Exercise Prosecutorial Discretion

ICE officers, agents, and supervisors with the Enforcement and Removal Operations with the authority to initiate removal proceedings, may also decide to refrain from enforcing the law against a particular individual. Likewise, officers, agents, and supervisors within the Homeland Security Investigations unit and attorneys and supervisors within the Office of the Principal Legal Advisor may exercise prosecutorial discretion and terminate a proceeding.

When May Officers, Agents, Supervisors or Attorneys Exercise Prosecutorial Discretion

Prosecutorial discretion may be exercised at any time by authorized personnel. An authorized person may exercise prosecutorial discretion at the earliest stages of removal proceedings by deciding whether or not to issue a Notice of Detainer on an individual in a local county jail. Or, an authorized person may exercise prosecutorial discretion by deciding whether or not to issue a Notice to Appear before an Immigration Judge. Likewise, an authorized attorney may exercise prosecutorial discretion before, during, or after removal proceedings. According to Immigrations and Customs Enforcement, prosecutorial discretion should be issued as early as possible to avoid clogging dockets, wasting resources, and prioritizing cases.