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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.

CASES | ADVOCACY | RESOURCES

CASES

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.

ADVOCACY

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.

 

RESOURCES

LAC Practice Advisory: Prosecutorial Discretion: How to Advocate for Your Client (June 24, 2011). This Practice Advisory 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 and USCIS officers.

LAC 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.