Prosecutorial Discretion (PD) in Individual Immigration Cases

When the President, as head of the executive branch, takes an action to implement and enforce the laws passed by Congress, we sometimes call it an ‘executive action. In such instances, the President delegates that power to the appropriate executive agencies; in the context of immigration, the relevant agencies and offices are U.S. Department of Homeland Security and the Attorney General. Decisions about how to enforce Immigration and Nationality Act (INA) are referred to as “prosecutorial discretion”, which is what it sounds like: the use of discretion to prosecute the laws.

Prosecutorial discretion therefore refers to the ability of an enforcement agency to decide how to do its job. For example, Immigration Customs and Enforcement (ICE) only has the resources to fully enforce the immigration laws against a relatively small percentage of the immigration population that is in violation of the Immigration and Nationality Act. Thus, when the ICE decides not to fully pursue enforcement in a particular case, it is favorably exercising discretion

The manner in which ICE carries out its duties is influenced by policy memorandum issued by its Director. Over the years, there have been numerous memos relating to how ICE should exercise its prosecutorial discretion. For instance, on whom should ICE focus its investigations? Who should ICE detain or allow to be admitted? Against whom should they initiate removal proceedings? Against whom should they seek removal orders?

This course, led by immigration attorney Matthew Blaisdell, seeks to provide attorneys with an understanding of the different points in the enforcement process at which they may advocate that ICE exercise its discretion in a favorable manner, as well as provide an idea of how a new President may take executive action to change the manner in which ICE exercises its discretion.

Learning Objectives: 

1. Understand situations the ICE may exercise its discretion while pursuing an enforcement action
2. Identify situations where prosecutorial discretion not apply

3. Discuss the current policies governing ICE prosecutorial discretion

4. Define what information an attorney should gather in order to prepare a request to ICE to favorably exercise its discretion

5. Address how attorneys may utilize prosecutorial discretion policies to become better advocates