Resources for 8-24-11 Seminar - AILA webCLE

IntroductionLike all other enforcement agencies, ICE has prosecutorial discretion. When ICEfavorably exercises prosecutorial discretion, it essentially decides not to assert the fullscope of the enforcement authority available to the agency in a given case. Morton,“Exercising Prosecutorial Discretion” at 2. In immigration cases, this discretion can beexercised with respect to investigations, arrests, detention, parole, the initiation ofremoval proceedings, and even the execution of final removal orders. In some cases, afavorable grant of prosecutorial discretion may be the only relief available to a client.This practice advisory explains what prosecutorial discretion is, who has authority toexercise it, and how it is exercised most often in immigration cases. It also suggests waysthat attorneys can advocate for the favorable exercise of prosecutorial discretion by DHSofficers, whether from ICE, USCIS or CBP. 3This practice advisory also discusses all currently applicable agency guidance onprosecutorial discretion in immigration cases – including memoranda from the legacyImmigration and Naturalization Services (INS), ICE and USCIS – and summarizes thisguidance in an attachment at the end of the advisory. In general, this guidanceencourages officers to consider the exercise of prosecutorial discretion in a variety ofsettings and sets forth guidelines for doing so. In particular, Director Morton clearlyexplains that, because of limited resources, ICE officers should focus enforcement effortson cases that fall within the agency’s four enforcement priorities: national security,border security, public safety, and the integrity of the immigration system. See Morton,“Exercising Prosecutorial Discretion.”Unfortunately, in the past, officers in the field too often failed to follow the guidance onprosecutorial discretion and, as a result, infrequently exercised such discretion favorably.For that reason, it is essential that attorneys advocate for expanded use of prosecutorialdiscretion, consistent with the 2011 Morton memoranda, by specifically requestingfavorable prosecutorial discretion in meritorious cases, and building a case for this reliefon behalf of clients, just as you would any other type of relief.What is prosecutorial discretion?“Prosecutorial discretion” is the authority of a law enforcement agency or officer chargedwith enforcing a law to decide whether – and to what degree – to enforce the law in aparticular case. See Morton, “Exercising Prosecutorial Discretion.” A law enforcementofficer who decides not to enforce the law against a person has favorably exercisedprosecutorial discretion. Examples of the favorable exercise of prosecutorial discretion inthe immigration context include a grant of deferred action; a stay of removal; or adecision not to issue a Notice to Appear (NTA).3For a more in-depth discussion of prosecutorial discretion, see Shoba SivaprasadWadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int.L.J., No. 2, 2010.4