Prosecutorial Discretion is Mandatory

Prosecutorial discretion is defined as the authority of an agency charged with enforcing a law to decide whether or not to enforce the law against someone. On November 17, 2000, retired Commissioner of the INS, Doris Meissner, issued a Memorandum to Regional Directors, District Directors, Chief Patrol Agents and Regional and District Counsel, mandating the INS to exercise prosecutorial discretion.

In her memorandum, Commissioner Meissner states that “[immigration] service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process…” Specifically with regard to enforcement of immigration law, prosecutorial discretion would include but not be limited to the decision to issue and serve a Notice to Appear (“NTA”) in the immigration court to demonstrate why one should not be removed from the United States, settling or dismissing a proceeding that has already begun and when to seek expedited removal, grant deferred action or agree to voluntary departure.

The decision to institute expedited removal proceedings has increased with alarming frequency. INS officers at ports of entry, usually airports, enjoy almost unfettered and unsupervised discretion in interrogating persons seeking admission to the United States. A common scenario is when a person who has been in the United States on previous occasions, despite having left within her permitted period of stay, returns to the United States to visit. Officers at the airport will conduct an intensive interrogation in order to ascertain whether the “tourist” truly seeks to visit or intends to remain. Language and translation problems normally do not stop the officer from continuing with their interrogation and often unconstitutionally rifle through one’s personal belongings in an attempt to find evidence of a desire to work and/or remain in the United States.

While lawyers are not allowed to be present at these interrogations and therefore the officers’ conduct often goes unchecked, lawyers are allowed to speak with the officers by telephone. If the individual seeking admission is “summarily removed” from the United States, she may not apply for readmission for 5 years. While the Writ of Habeas Corpus in a District Court remains a viable opportunity for challenging this atrocious INS conduct, a challenge which we have sucessfully made in the past, the exercise of prosecutorial discretion may now also be a legitimate path to pursue. Thus, if the officer is intent on removing the person trying to enter the United States, the lawyer may sometimes convince the officer to grant voluntary departure or in the alternative, advise the person applying for admission to withdraw the application. This way, the individual could attempt to return immediately.

As indicated above, prosecutorial discretion also applies to the decision to institute removal or recission proceedings, or to settle or dismiss pending proceedings. Commissioner Meissner has instructed the recipients of the Memorandum to apply a “substantial Federal interest” test. In other words, how important is the Federal (governmental) interest in the case as compared to other interests and priorities? How important a Federal interest is it to remove a long time taxpaying resident of the United States who happened to enter under a different name compared to removing serious criminal aliens? Along those lines, Commissioner Meissner instructed her personnel that “even if an immigration officer has reason to believe that an alien is removable from the United States and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case.

Even if you are now in removal proceedings it is possible that with the right advocate, your case could be settled. If you believe that the prosecution of you and/or your family members does not meet a substantial federal interest and that you have sufficient ties to the United States which would warrant a favorable exercise of prosecutorial discretion, you should contact your lawyer immediately and urge them to discuss your matter with the Office of the District Counsel.