Prosecutorial discretion is the power of a law enforcement agency to determine the extent or degree the law will be enforced against a particular individual. Although the concept of prosecutorial discretion has been an important part of the immigration process for many years, it has attracted a great deal of attention and notoriety last year. This was prompted by a number of memoranda and announcements issued by the Department of Homeland Security (DHS), which oversees the enforcement and administration of the immigration laws in the United States. All three subparts of the Department of Homeland Security over immigration law, namely U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP) possess the authority to use prosecutorial discretion as they see fit.
It is the ICE's prosecutorial discretion that matters for individuals who face the threat of removal from the United States. It is not a secret that ICE simply does not have enough resources to seek out and remove all of the individuals who are in this country illegally. As such, ICE has decided to focus on identifying and removing criminal offenders, repeat immigration violators, individuals trying to enter the United States illegally, and fugitives. In fact, out of approximately 397,000 removals by ICE in 2011, 90% included the above listed target groups.
In June 2011, the ICE issued a memorandum setting forth positive and negative factors ICE would consider in deciding whether prosecutorial discretion should be exercised. These factors are to assist ICE in determining, among others, whether to commence removal proceedings against a particular individual in the first place or cancel already pending removal proceedings by either joining in a motion to terminate or administratively close the case. According to the memo, factors governing the exercise of prosecutorial discretion should be particularly considered when dealing with long-time lawful permanent residents, minors and elderly individuals, veterans and members of the U.S. armed forces, pregnant or nursing women, individuals with serious health and mental problems, and victims of domestic violence.
To say that the implementation of prosecutorial discretion following the June 2011 memorandum as well as other announcements has been a smooth sail would be inaccurate. Until specific and detailed guidance is issued at all levels of the DHS's agencies, confusion and lack of uniformity have been the primary problems. However, I can say that in many of our currently pending court cases the government has been at least willing to consider prosecutorial discretion, using a case-by-case approach. Since a number of our clients has benefited from the ICE's favorable exercise of discretion, it has been a welcome development. However, it is important to note that prosecutorial discretion is not "President Obama's amnesty." In fact, ICE has clearly stated that there is no right to the favorable exercise of discretion.
To make matters more interesting, the Court of Appeals for the Ninth Circuit (Ninth Circuit) recently ordered the government to determine whether they are planning to exercise prosecutorial discretion in specific five cases currently on appeal. Citing the 2011 ICE memorandum, the Ninth Circuit judges requested that the federal prosecutors evaluate the cases for prosecutorial discretion and advise what effect, if any, the favorable discretion would have on these cases. It is not clear how the Ninth Circuit selected the five cases in question.
It remains to be seen how the federal prosecutors will respond to the Ninth Circuit's challenge. However, the Ninth Circuit's position is an encouraging sign, which hopefully will translate into more positive developments for the individuals facing removal from the United States and alleviate the overwhelming backlog of appellate immigration cases. In the meantime, individuals in similar circumstances are encouraged to contact immigration attorneys for advice and evaluation. At Wilner and O'Reilly, we have experienced and knowledgeable attorneys who will be glad to help.