Reflecting on Prosecutorial Discretion: A Year Later

By: Lauren Graham Sullivan

Over a year ago, Immigration and Customs Enforcement (ICE) announced that it would focus its resources on the highest priority cases. This effort to implement new enforcement standards through the exercise of prosecutorial discretion (PD) had me doing back flips as I read the guidance addressed to all ICE directors, chief counsel, and field officers. This memo and the statements that followed signaled a change in the enforcement practices and priorities of ICE – the same agency that conducted factory raids in 2007 that resulted in the detention and deportation of breastfeeding mothers and other vulnerable populations.

As the months passed, I realized that the PD memos had less of an impact than I had hoped. Just last week, one of my pro bono attorneys reported that an ICE officer didn’t know about PD, and once informed, wrote a one-sentence response stating that ICE would “decline to exercise PD in [his] client’s case.” There was no discussion of the equities, which in this case included mental disabilities, HIV, long time Lawful Permanent Resident (LPR) status, U.S. citizen family members, no family in the native country, and only two non-violent convictions. ICE’s response to the request for PD shed little light on how ICE prioritizes cases.

I worry for the Respondents who have no representation. Recently, at a Master Calendar hearing, many of the represented Respondents discussed PD with the trial attorney, while PD was not mentioned once to the unrepresented Respondents. Also, each week CLINIC’s Pro Bono Project reviews cases that are on appeal before the BIA. We see cases where the Respondent lacks any legal form of relief but has many of the equities that could lead to a favorable exercise of discretion. These equities were ignored by the officer who chose to issue the Notice to Appear, by the trial attorney during removal proceedings, and the equities will be ignored at the BIA level because ICE announced it will not review appeals filed by unrepresented individuals for PD.

I seem disenchanted by PD, but I am not. I instead view the memos as the beginning of a very exciting and promising year. Most notably, the memos laid the foundation that gave birth to Deferred Action for Childhood Arrivals, a form of PD that has had more traction. EOIR announced that it is developing a self-help packet about PD for unrepresented detainees to be distributed by the Legal Orientation Program. The Supreme Court, in striking down 3 out of 4 of the provisions of the Arizona law, affirmed the Executive Branch’s authority to exercise PD in its majority opinion. Interestingly, USCIS also announced its proposed plan for stateside adjudication of waiver applications for unlawful presence. This change, though not in effect yet, provides another example of administrative changes that an agency can and will make to ensure the process makes sense and emphasizes its priorities. Lastly, I envision the more than 20,000 individuals (less than 8% of the 300,000 cases reviewed) being offered PD that otherwise had no form of relief and would otherwise have been removed from the U.S.

As I reflect about what has happened in the year after the first PD memo, I eagerly anticipate a continuing shift in the climate surrounding immigration law. Without doubt, the conversation will remain heated and polarizing at times, but maybe the Administration’s attempt to prioritize resources (with the Supreme Court’s validation) may inspire Congress that solutions to fixing the broken immigration system are possible and necessary. And, if anything else, I feel a sense of progress after this year, and, I hope, the PD memos are only just the beginning of many important dialogues about our government’s immigration priorities.

* Lauren Sullivan is the coordinator for the BIA Pro Bono Project