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In light of recent ICE memo, a primer on 'prosecutorial discretion'

A U.S. Immigration and Customs Enforcement officer prepares an undocumented Salvadoran immigrant for a deportation flight bound for San Salvador in Mesa, Arizona, December 2010
A U.S. Immigration and Customs Enforcement officer prepares an undocumented Salvadoran immigrant for a deportation flight bound for San Salvador in Mesa, Arizona, December 2010
Photo by John Moore/Getty Images

Last month, U.S. Immigration and Customs Enforcement director John Morton issued a memo to the agency's employees urging the use of prosecutorial discretion in the cases of certain immigrants, among them people who grew up in the United States after arriving here as children, and those who have served the military and their families.

It's a directive that will be put to the test, as U.S.-raised young people continue to land in deportation proceedings. And just how it changes things remains a bit of a mystery.

For those who are unfamiliar with what prosecutorial discretion is and how it's exercised, the Immigration Policy Center recently updated its guide to understanding how it works in immigration law. Among the basics that are covered:

What is Prosecutorial Discretion?

“Prosecutorial discretion” is the authority of an agency or officer charged with enforcing a law to decide whether to enforce the law in a particular case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion.

The authority to exercise discretion in deciding when to prosecute and when not to prosecute has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts. The Supreme Court has made it clear that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney 470 U.S. 821, 831 (1985).

When is Prosecutorial Discretion Used in Immigration Enforcement?

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when: deciding to issue a detainer; deciding to issue a Notice to Appear; focusing enforcement resources on particular violations or conduct; deciding whom to stop, question, or arrest; deciding whom to detain or to release on bond, supervision, or personal recognizance; seeking expedited removal or other removal by means other than a formal immigration court proceeding; settling or dismissing a proceeding; granting deferred action, parole, or staying a final order of removal; pursuing an appeal; executing a removal order; responding to or joining in a motion to reopen removal proceedings; and to consider joining in a motion to grant relief or an immigration benefit.

Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.

Does the memo provide any new form of relief for immigrants? No, the explainer goes on:
... the memo clarifies the factors that should be considered in exercising prosecutorial discretion, and in the process provides noncitizens and their representatives a better understanding of what cases are appropriate for deferrals or other action.  The memo also clarifies which ICE officers can exercise prosecutorial discretion, increasing the probability that prosecutorial discretion will be exercised before an individual’s case reaches immigration court.  Ultimately, however, each case will continue to be decided individually on the basis of all available information.

Several other questions about prosecutorial discretion are explained in a comprehensive list. It's a good read, not only for those who work in immigration law. A list of factors for ICE employees to consider when exercising prosecutorial discretion, from the June 17 memo, can he read here.

The Immigration Policy Center is the research and policy component of the American Immigration Council, an immigration law-oriented advocacy nonprofit whose board consists of legal professionals.