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10 things you need to know about Prosecutorial Discretion

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Understanding the Administration’s Prosecutorial Discretion Initiative

Background on prosecutorial discretion

  • Prosecutorial discretion is the long established authority of a law enforcement agency or officer to decide what charges to bring and how to pursue each case.
  • In 2011 the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) announced a new process to utilize prosecutorial discretion in a nationwide review of about 300,000 cases of migrants currently in deportation proceedings before U.S. Immigration Courts.
  • This new review process will allow ICE attorneys to close cases of migrants considered a low priority for removal, including individuals who have strong ties to the United States, have made significant contributions, or have not committed any serious crimes.
  • A trial period took place in Denver, CO and Baltimore, MD in December 2011 and January 2012. ICE expects to finish its nationwide review by summer 2012.
  • When cases are administratively closed, migrants are allowed to remain in the United States. However, according to DHS officials, they will not be provided legal status, a work permit, or a guarantee that their case will not be reopened at a later date.


What is needed to make the prosecutorial discretion initiative more effective?

  • Migrants whose cases are closed should be eligible to receive work authorization. It does not make sense to allow individuals to remain temporarily in the United States, but then prevent them from working legally and supporting themselves and their families.
  • Migrants who continue to pursue their legal claims or are not eligible for prosecutorial discretion should not face prolonged court delays. The Baltimore Immigration Court has rescheduled some hearing dates up to two years later. This delay is emotionally, mentally, and financially taxing on migrants waiting for their cases to be heard, especially asylum-seekers who are particularly vulnerable.
  • The U.S. government must make information publicly available to communities and migrants. While some immigrants have legal representation, many do not. An estimated 84% of immigrant detainees lack legal representation. Misinformation about the review will undermine the process and expose individuals to harm from unethical notarios.


Next steps

  • Although U.S. communities, families, and the economy need an overhaul to the U.S. immigration system, in the short-term we must improve the implementation of this initiative.
  • If implemented correctly, consistently, and fairly, this review process could lead to a more practical and fiscally responsible immigration enforcement strategy.

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