What is Immigration Prosecutorial Discretion?

Prosecutorial discretion is the authority of an agency or officer to decide what charges to bring and how to pursue each 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 based on a priority system has long been recognized as a critical part of U.S. immigration 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 immigration proceedings, is a decision generally committed to an agency’s absolute discretion.”

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order.

Once an arrest is made, a prosecutor screens the case to determine if it should be prosecuted or dropped.

The decision to prosecute is based on the following factors: 

         the sufficiency of the evidence linking the suspect to the offense

         the seriousness of the offense

         the size of the court’s caseload

         the need to conserve prosecutorial resources for more serious cases

         the availability of alternatives to formal prosecution

         the defendant’s culpability (moral blameworthiness)

         the defendant’s criminal record

         the defendant’s willingness to cooperate with the investigation or prosecution of others.

Prosecutorial discretion “programs” also exist, such as Deferred Action for Childhood Arrivals (DACA) and deferred action for domestic violence victims who are seeking a green card based on a relationship to a lawful permanent resident or U.S. citizen.

Immigration and Customs Enforcement, also known as ICE, exercises prosecutorial discretion because has limited resources and needs to use those resources carefully to meet its priorities. In addition, by exercising prosecutorial discretion, ICE can quickly close some cases that are less important and can save time and resources for important cases.

Receiving prosecutorial discretion can be not easy at all. Prosecutorial discretion does not give everyone who wants it an avenue for relief.