Prosecutorial Discretion in Immigration Cases?? Really?

By: Danielle E. Huntley, Esq.  

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.


Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.


There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:


  • 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 who 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 a motion to grant relief or a benefit.


Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:


“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”


The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.


This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.


Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.