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Prosecutorial Discretion

Last Updated: 
Wed, Jun 08, 2011

Under the President’s Immigration Accountability Executive Action, prosecutorial discretion will be exercised differently. In addition to the announcement of a new DACA-like deferred action program for the parents of U.S. citizens and lawful permanent residents, the Immigration Accountability Executive Action expands the existing DACA program and sets forth new enforcement priorities that will bind ICE, USCIS and CBP. For more information on these changes, please see the American Immigration Council’s guide to the President’s Immigration Accountability Executive Action here.

The American Immigration Council is currently developing new resources on prosecutorial discretion


Prosecutorial discretion is the authority of a law enforcement agency or officer to decide whether to enforce the law in a particular case. In the immigration context, favorable exercises of prosecutorial discretion include grants of deferred action, stays of removal, and decisions to cancel or not issue a Notice to Appear (NTA). Since 2000, the legacy Immigration and Naturalization Service and current DHS agencies have issued more than a dozen guidance memoranda addressing prosecutorial discretion. The LAC has issued a practice advisory suggesting ways that immigration attorneys can influence the favorable exercise of prosecutorial discretion by DHS, and filed an amicus brief relating to the exercise of prosecutorial discretion in a Ninth Circuit case.



State of Texas, et al. v. United States, No. 1:14-cv-00254 (S.D.Tex., amicus brief filed Dec. 29, 2014). The Council, in collaboration with immigration, civil rights and labor groups, joined the legal effort to defend the deferred action initiatives President Obama announced on November 20, 2014. The amicus brief, which was written in support of the federal government, provides powerful economic, fiscal and societal reasons to permit the implementation of these programs. 

Vega Alvarez v. Holder, No. 08-71383 (9th Cir. amicus brief filed Feb. 25, 2011). The court requested that the parties submit supplemental briefs on the impact of the Morton Memo on civil immigration enforcement priorities on the continued prosecution of removal proceedings against the petitioners.


Letter to DHS Secretary Janet Napolitano (submitted February 9, 2012). This sign-on letter expresses concerns about DHS’s implementation of the new prosecutorial discretion policy, including the agency’s failure to grant work authorization to those who receive a favorable exercise of discretion. The letter also makes recommendations to ensure that DHS fulfills its pledge to implement an effective and fair prosecutorial discretion policy nationwide.

Recommendations Regarding Implementation of the Prosecutorial Discretion Initiative (submitted September 30, 2011). This letter to several Administration officials was submitted in response to the DHS/White House announcement on August 18, 2011 that it would form a "Prosecutorial Discretion Working Group" to review pending removal cases and identify low priority cases for administrative closure. The letter urges the government to address some of the key practical challenges to effective implementation and makes recommendations to try to improve the process.

Memorandum, “Executive Branch Authority Regarding Implementation of Immigration Laws and Policies” (April 29, 2011). This memorandum, which was released by the American Immigration Council and co-signed by two general counsels of the former Immigration and Naturalization Service, offers an overview of the scope of executive branch authority and outlines specific steps the Administration could take to forestall removals in sympathetic cases.

Letter to DHS Secretary Janet Napolitano (submitted April 6, 2011). This letter requests written guidance setting forth detailed criteria for the favorable exercise of prosecutorial discretion and the assignment of a high-level officer to monitor implementation of the policy.



Practice Advisory: Preventing the Removal of Individuals Who Are Not Enforcement Priorities (March 18, 2015). This Practice Advisory, updated after the Southern District of Texas preliminary enjoined implementation of the Deferred Actions for Parents of Americans and Lawful Permanent Residents (DAPA) initiative as well as the expansion of the Deferred Action for Childhood Arrivals (DACA) initiative, offers strategies to facilitate the release from custody or prevent the removal of individuals who are not enforcement priorities or who are eligible for Expanded DACA or DAPA. 

Practice Advisory: Prosecutorial Discretion Requests Under the Johnson Enforcement Priorities Memorandum (March 18, 2015). This Practice Advisory briefly discusses the Enforcement Memo’s new three-tiered enforcement prioritization scheme, the various exceptions to the enumerated priorities, detention policy under the Enforcement Memo, and steps the agency is taking to implement the new policy. This Practice Advisory also refers practitioners to other helpful resources, including updated versions of the American Immigration Council’s practice advisory on prosecutorial discretion generally entitled Prosecutorial Discretion: How to Advocate for Your Client and a practice advisory

Practice Advisory: Prosecutorial Discretion: How to Advocate for Your Client (Updated March 18, 2015).  This Practice Advisory, updated following the issuance of Secretary Johnson’s November 20, 2014 memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. It also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by ICE, CBP and USCIS officers. 

Practice Advisory: DHS Review of Low Priority Cases for Prosecutorial Discretion (December 12, 2011). This Practice Advisory addresses the implementation of DHS's prosecutorial discretion guidelines and provides detail about how DHS's new joint working group will determine low priority immigration cases.

Immigration Policy Center, Prosecutorial Discretion and Executive Action: A Resource Page.

Immigration Policy Center, Special Report, by Shoba Sivaprasad Wadhia: The Morton Memo: Federal Priorities and Prosecutorial Discretion.

Immigration Policy Center Q&A: Understanding Prosecutorial Discretion in Immigration Law.