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Prosecutorial Discretion: What It Is and How Is It Being Applied

By Debbie Smith

On August 18th, the Obama administration announced that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) would be participating in a joint working group to ensure that the agencies direct their resources to the high-priority cases and “clear out” cases that do not involve immigrants who have been convicted of crimes or pose a security risk, i.e. low priority cases.  As part of this inter-agency review, the working group will analyze whether the 300,000 cases currently pending before the immigration courts, Board of Immigration Appeals, and federal circuit courts of appeals should be administratively closed.  The August 18th announcement was intended to implement the two memos issued by ICE Director John Morton on June 17, 2011 about prosecutorial discretion that clarify DHS’ enforcement priorities: national security, public safety, border security and repeat immigration law violators. 

What is prosecutorial discretion?  Prosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against a person, and even if there is a decision to exercise enforcement powers – to what degree and how – in what form to exercise enforcement powers.  In the immigration context, the decision of who to stop, who to arrest, who to detain, whether to initiate proceedings, and whether to execute a removal order are all examples of the exercise of prosecutorial discretion.  The types of prosecutorial discretion at ICE’s disposal include the decision to issue or cancel a detainer; issue, reissue, serve, file or cancel a Notice to Appeal; grant deferred action, parole or a stay of removal; settling or dismissing a proceeding, and pursuing an appeal.  Prosecutorial discretion may involve individual immigration decisions or larger policy determinations.  For example, the decision not to engage in immigration enforcement near schools or churches is a prosecutorial discretion decision within a larger policy framework.

What positive factors will be considered in a prosecutorial discretion decision? The factors that may be weighed in the exercise of prosecutorial discretion are the types of positive and hardship factors that we often consider in waiver cases.  The positive factors have been identified by DHS as meriting particular care and concern:

  • the length of presence in the US
  • the history, ties and contributions to the community
  • ties to family in the US and their citizenship or immigration status
  • ties to the home country
  • conditions in that country
  • health and age factors
  • presence of family members requiring care, military veterans, victims of domestic abuse or trafficking or other serious crimes, pregnant and nursing women. 

What is the current practice around the country? Although the August 18th announcement indicated that there would be guidance on prosecutorial discretion, two months later, no guidance has yet been issued.  Practitioners report that there is no uniform method of handling cases that request prosecutorial discretion.  The American Immigration Lawyers Association and the American Immigration Council recently released an interim report on the implementation of prosecutorial discretion nationwide.  According to this interim report, there has been a mixed response to practitioner requests for prosecutorial discretion.  Some offices have granted deferred actions and stays of removal.  Some DHS district counsel (OCC) have opposed motions to administratively close proceedings while others have joined in motions to administratively close.  Many immigration judges and district counsel have indicated an unwillingness to provide prosecutorial discretion until there is guidance and written memos from the joint DHS and DOJ working group.

What should you do?  There are significant questions left unanswered in the implementation of the announcement and Morton memos.  However, it may be important to do an inventory of your cases to determine if any fall within the areas specified in the announcement and memos.  This is particularly true for cases involving individuals currently in removal proceedings for whom the cancellation or reissuance of a Notice to Appear would permit the non-citizen to qualify for relief such as cancellation of removal or other forms of relief.  For example, if your client fits the criteria outlined for prosecutorial discretion, is in removal proceedings, and has eight years of physical presence in the US, you may seek prosecutorial discretion with the thought of cancelling the Notice to Appear now but later requesting reissuance if your client has a good cancellation of removal case.

In addition, it’s important to review your cases to look for instances involving individuals who were the victim of a crime, a witness to a crime, or a plaintiff in a lawsuit involving civil liberties or civil rights.  We are accustomed to looking for crime victims for purposes of U visa cases, but we can also expand our sights to those involved in protecting their civil rights via union organizing or complaining about employment discrimination or housing conditions.  Those involved in unfair labor practice actions – state or federal labor department cases, employment discrimination actions, etc. – should be protected under the terms of the Morton memos. 

Prosecutorial discretion should also be exercised to allow clients previously apprehended by ICE to be released from custody or granted deferred action, parole or a stay of removal.  Other clients in removal proceedings may be able to benefit from the exercise of prosecutorial discretion and be permitted to settle a case or appeal, dismiss a proceeding, or join in a motion to reopen removal proceedings.

How do you go about requesting prosecutorial discretion? The announcement and memos do not outline any procedure for requesting prosecutorial discretion.  However, since prosecutorial discretion may be requested at any stage in the proceedings – at the time of arrest, detention, or  even after an order of removal – where the request is filed will depend on the stage of the case.  You may make the request of the district counsel if your client is in removal proceedings.  In other circumstances, it may be appropriate to make your request of others within ICE.

Your client may also request prosecutorial discretion from USCIS to prevent the initiation of proceedings or request other consideration.  Despite the fact that the current memo is from ICE, previous memos have included USCIS, and it is also appropriate to request its exercise prosecutorial discretion.

CLINIC’s Advocacy staff is interested in hearing from you about your experiences with requesting prosecutorial discretion in your cases.  Please contact Allison Posner at aposner@cliniclegal.org to relate your experiences sharing the merits of your clients’ cases and how the government responded to your requests.