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Prosecutorial Discretion

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is prosecutorial discretion?

Prosecutorial discretion is the authority of the immigration officials in deciding whether to bring charges, defer filing of charges, specify the charges, or how to pursue (or even drop) the charges they have filed.

Law enforcement agencies constantly balance many factors in allocating their resources.  These factors include the availability of resources, enforcement priorities, severity of alleged violation, the factual circumstances, and the character of the alleged violator.  This process is the exercise of prosecutorial discretion. A common example of prosecutorial discretion, which you may have experienced, is when a police officer, who has stopped you for minor traffic offenses, suddenly lets you go because he or she has to respond to a more serious call for help.

Exercise of prosecutorial discretion has long been recognized as an important element of law enforcement. It can be applied in all contexts, including administrative, civil, and criminal matters. It has been recognized by the Supreme Court of the United States, which, in Heckler v. Chaney, 470 U.S. 821, 831 (1985), held 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.”

Some law enforcement agencies apply prosecutorial discretion in an ad hoc fashion and some have formalized how it should be exercised. In the immigration context, exercise of prosecutorial discretion is guided by a June 17, 2011 Memorandum, entitled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, issued by Director John Morton of the U.S. Immigration and Customs Enforcement (ICE), also known as Morton Memo.

Which immigration officials may exercise prosecutorial discretion?

A wide array of immigration officials, who have authority to enforce immigration laws, are authorized to exercise prosecutorial discretion. They include officers, agents, special agents, attorneys, and their respective supervisors, as well as the senior staff.  See Morton Memo. at p. 3.

What can immigration officials do by exercising discretion?

In the context civil matters, such as removal proceedings, the appropriate immigration officials have the authority to exercise prosecutorial discretion in

  • deciding to issue or cancel a notice of detainer;
  • deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
  • focusing enforcement resources on particular administrative violations or conduct;
  • deciding whom to stop, question, or arrest for an administrative violation;
  • deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
  • seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
  • settling or dismissing a proceeding;
  • granting deferred action, granting parole, or staying a final order of removal;
  • agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
  • pursuing an appeal;
  • executing a removal order; and
  • responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

Morton Memo. at pp. 2-3.

If you are in removal proceeding, you may wonder what kinds of helpful actions the ICE attorney (your opposing attorney) can take in exercise of prosecutorial discretion. For example, when the government attorney agrees to an extension of time, he or she is exercising prosecutorial discretion, or when the government attorney decides not to object to some deficiency in your presentation, he or she is exercising prosecutorial discretion.

Government attorneys' authority to exercise prosecutorial discretion extends beyond the examples above. They have the authority to dismiss, suspend, or close a particular case. However, if an ICE attorney decides to dismiss, suspend, or close a particular case or matter in exercise of prosecutorial discretion, the attorney must notify the relevant immigration officials. If a disagreement arises with respect to the attorney's proposed action, it would be resolved ultimately by the Deputy Director of ICE.  See Morton Memo. at p. 3.

Is prosecutorial discretion exercised with respect to groups of cases or in individual case?

Prosecutorial discretion may be exercised in individual matters on a case-by-case basis or with respect to a wide class of individuals, e.g. the DACA program.

Do I have the right to demand exercise of prosecutorial discretion?

No. Exercise of prosecutorial discretion is entirely discretionary.  Nevertheless, you have the right to request government officials exercise their discretion in your favor. Among the rights guaranteed by the first amendment to the United States Constitution is the right to “petition the government for a redress of grievances.”  Note that the first amendment only guarantees the right to petition and not the right to a particular outcome.

What factors do the government officials consider in exercising prosecutorial discretion?

The Morton Memo. lists many factors which should be considered in exercise of prosecutorial discretion. These factors include:

  • the agency's civil immigration enforcement priorities;
  • the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
  • the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  • the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  • whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  • whether the person poses a national security or public safety concern;
  • the person's ties and contributions to the community, including family relationships;
  • the person's ties to the home country and conditions in the country;
  • the person's age, with particular consideration given to minors and the elderly;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  • whether the person or the person's spouse is pregnant or nursing;
  • whether the person or the person's spouse suffers from severe mental or physical illness;
  • whether the person's nationality renders removal unlikely;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or [the] National Labor Relations Board, among others.

Morton Memo. at p. 4.

How should I make a request for exercise of prosecutorial discretion?

How you make a request for exercise of prosecutorial decision to the ICE attorney, who represents the government in a removal proceeding, entirely depends on the circumstances and what you are going to ask for. There are no set rules for making such a request and the presentation you need to make would largely depend on the facts and circumstances of the case. You should consult your attorney and first determine the viability of the request. Afterwards, you should assemble documentation which would provide compelling support for the exercise of discretion in your favor.


Related Topics:

Removal Proceeding Procedure & Defenses

Removal Proceedings

Grounds for Removal

Voluntary Departure

U.S. Immigration and Customs Enforcement (ICE)

Immigration Bond

Expedited Removal

Undocumented Immigrants


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