Prosecutorial Discretion in Removal Proceedings

Prosecutorial discretion has been a major part of the immigration debate going back at least to the infamous Morton Memo from the Summer of 2011. In truth, the concept is anything but new.

Prosecutorial discretion is the ability of law enforcement officers, prosecutors and others to make decisions about how to best apply the law they are charged with enforcing while also taking into account the resources of their respective law enforcement agencies. Prosecutorial discretion is common throughout the U.S. criminal justice system. A great example is when a police officer stops someone for speeding but decides to issue a warning in lieu of an actual ticket.

Immigration is no different. While immigration agents and trial attorneys have had various options in determining whether or not to place individuals in removal proceedings for some time, and concepts such as deferred action, stays of removal and administrative closure have been around for years, prosecutorial discretion in the immigration context has received increasing attention.

Beginning with the so-called Morton Memo from July 2011, and subsequent clarifications, the U.S. Department of Security has become increasingly more specific in how it wants agents and attorneys applying their discretion in determining whether to close removal proceedings or even bring them about in the first place.

Factors officers have been instructed to consider include an individual’s length of residence in the United States, the government’s civil enforcement priorities and resources, the circumstances of the individual’s arrival in the United States, his or her criminal history, his or her immigration history and more.

Despite such instructions, the number of immigrants in removal proceedings who have benefited from prosecutorial discretion remains very low, even when they seem to meet the established criteria.

If an individual is placed in removal proceedings and he or she feels prosecutorial discretion may be a possibility, it is important to discuss the matter with a competent immigration attorney. Like other immigration matters, requests for prosecutorial discretion can become complicated and there are no guarantees of success.


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