What is Prosecutorial Discretion and How Does It Affect You?

By Robert L. Reeves & Nancy E. Miller

On August 18, 2001, the Obama Administration announced that the Department of Homeland Security would review approximately 300,000 pending court cases to determine whether prosecutorial discretion should be exercised in some or all of those case.  It has been suggested that the prosecutorial discretion policy was announced to cool the negative feelings engendered by the Secure Communities Program.  Secure Communities was purportedly created to focus the Department of Homeland Security’s  (DHS) limited resources on immigrants who pose threats to the community.  Under the program, fingerprints taken in local jails are forwarded to the Federal Bureau of Investigation (FBI) and shared with the Immigration & Customs Enforcement (ICE).   The result was supposed to be that the most dangerous criminals and terrorists would be taken into ICE custody.  However, the reality has been that non-citizens with low-level convictions, non-citizens who are arrested but either not charged or not convicted of crimes, and victims of crimes have been referred to ICE and placed into proceedings. Clearly, this program has not advanced the Obama Administration’s promise to help the 11,000,000 undocumented immigrants currently in this country to come out from the shadows.

In a concession to that reality, the Administration announced that the DHS would prioritize which groups of non-citizens it would either place into proceedings or keep in proceedings.  It also said it would use this criteria to assist in determining which non-citizens would be pursued for physical removal from this country. 

This prioritization is called prosecutorial discretion.  It is an acknowledgment that the agency does not have the resources to prosecute and remove every non-citizen who might be subject to removal.  And it is a determination of which aliens are going to receive more or less focus.  At this point, the DHS officers and attorneys are waiting for guidelines from Washington, D.C. to assist them in formulating and carrying out the policy.  They are, at present, working from existing guidelines (most specifically the Memo that was issued by ICE Director John Morton on June 17, 2011). According to Timothy Robbins, Field Office Director of ICE, Enforcement and Removal Operations,  Los Angeles, certain groups of aliens will be prosecuted very aggressively.  These people include those with criminal convictions (including what some might consider low-level or low tier), those who recently entered the United States and are in unlawful status and those who have, in the words of ICE officers, “gamed the system” meaning that they have already received final removal orders and have not departed. This last group of people are considered “fugitives” and there are 8 ICE Units in Los Angeles specifically designated to locate them and effect their removal from the United States.  Anyone who believes that they may be in this group should consult a knowledgeable immigration lawyer before they are taken into custody to determine whether their case can be reopened. 

Less is known about what criteria will be used to determine who is a low-priority.  Again, based on the Morton Memo, it is assumed that some of the relevant factors will be the person’s length of stay in the United States and whether any of that stay was lawful; circumstances of arrival, including the age at arrival; the age and health of the alien today; the family members the alien has here – especially if one or more of them are in the military; whether the alien is a primary care-giver or is the sole-support for their lawful family members.  This is a partial list from the Memo and even the Memo was not exhaustive.  Therefore, no one knows exactly what factors will be given what weight in determining whether to exercise prosecutorial discretion. 

It is also not known what form prosecutorial discretion will take, i.e. whether the court case will be terminated or whether it will simply be temporarily closed.  It is also not known how, or if, the alien will qualify for work authorization.  What is known is that prosecutorial discretion is NOT amnesty.  It is NOT a road to a green card or any other form of legalized status, at this point.  Therefore, one should tread carefully.  Anyone who believes they might be a good candidate for prosecutorial discretion should consult a knowledgeable, experienced and reputable immigration lawyer to help them wade through these uncharted waters.