A Brief Q&A on Prosecutorial Discretion

Prosecutorial discretion can be a great benefit to law enforcement agencies, allowing them to manage their own resources in more efficient ways. It can help criminal law enforcement to save on the space and money they allocate to prisons, for instance, and encourage police officers to prioritize their actions in different cases of unlawful activity.

While it works to the advantage of law enforcement, prosecutorial discretion can also be a blessing to many other people in the United States, including those involved in immigration proceedings. Take a look at some of the most common questions surrounding prosecutorial discretion to learn more about how it might help you in an immigration context.

What is prosecutorial discretion?

Law enforcement bodies often need to exercise judgment about the nature of charges which would be appropriate to bring against an individual who has had some sort of run-in with the law—if any. They are afforded a type of authority and decision-making power called prosecutorial discretion. In the US criminal justice system, this authority is most often exercised by prosecutors who have an immense amount of power to decide whether or not charges should be brought in a criminal case. Prosecutorial discretion can also play a major role in immigration proceedings.

How is prosecutorial discretion used in immigration law enforcement?

Immigration law enforcement agencies, such as the federal Department of Homeland Security (DHS), can exercise prosecutorial discretion at any stage of an immigration case. It gives them the authority to settle or dismiss existing removal proceedings, or to initiate or refrain from initiating removal proceedings. They can also “stay” or decline to carry out removal orders, and they can either support or refrain from contesting a motion to reopen or terminate removal proceedings.

Who exercises prosecutorial discretion?

Any law enforcement agency or officer in a civil, administrative, or criminal context has the power of prosecutorial discretion. In the case of immigration law, the authority of prosecutorial discretion is given to ICE, USCIS, and CBP officers, among other specific types of agents.

When is prosecutorial discretion typically exercised?

Prosecutorial discretion is often used on a case by case basis by an individual officer or employee of a law enforcement agency, but not always. As a matter of discretion, agencies can implement new priorities to help them allocate their own resources, or they can introduce agency-wide policies about matters of procedure which may not be covered by current legislation.

What does ICE consider when exercising prosecutorial discretion?

While ICE lacks the resources to simply remove every person who is illegally present in the US, its agents will consider certain factors when deciding how and when to exercise prosecutorial discretion. If you are pursuing education in the US, made contributions and relationships within a community, served in the armed forces, or you have a parent, spouse, or child with US citizenship or permanent residency, then you may have a greater chance of favorable prosecutorial discretion. Agents and officers might also look at the length of your presence in the country, the circumstances of your arrival, and your age, to name a few more.

What else can influence the decision to use prosecutorial discretion?

Law enforcement officials will closely consider several different factors to prioritize which cases will be dismissed, charged, or otherwise subjected to prosecutorial discretion. Some officials may take liberties with laws that are more open to interpretation. Societal changes can also influence officials, many of whom will avoid enforcing outdated or overly vague laws. For example, legislation surrounding the immigration of same-sex spouses has been updated in recent years, but many same-sex families still require prosecutorial discretion to avoid separation.

Requesting prosecutorial discretion has helped many people in immigration cases, but that doesn’t mean it’s an infallible plan, nor is it always the best option available. You should never depend on prosecutorial discretion to save your immigration case, and be aware that even favorable prosecutorial discretion does not result in work authorization and other important immigration benefits. Make a wise decision and contact an experienced immigration lawyer before taking any action. The attorneys at Sánchez-Roig Law Firm, P.A. can answer your questions and help advise you on the best course of action for your unique situation.