Prosecutorial Discretion in Immigration Enforcement

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

A recent article in the L.A. Times highlighted a reported rise in the use of prosecutorial discretion in United States immigration system. There are many undocumented immigrants in the U.S., many of whom want nothing more than to reside in the U.S. legally in hope of eventually obtaining U.S. citizenship. ICE officers and their departments are under a directive to prioritize whom they prosecute under the current immigration laws for removal.  They are expected to target those with criminal backgrounds and those whom they otherwise believe pose a threat to national security.

The article on prosecutorial discretion suggests that, “Immigrants facing deportation are increasingly likely to have their cases dismissed because of mitigating factors such as having U.S. citizen children, according to an analysis by researchers at Syracuse University.”[i]  In reality, the use of prosecutorial discretion varies widely between jurisdictions and is often up to the attorney assigned to the case at that particular time by the Office of Chief Counsel for DSH/ICE.

Prosecutorial discretion in immigration means ICE should focus on national security and public safety.

In 2011, the director of ICE, Mr. John Morton, issued a memorandum directing that immigration officials review a few factors before making the decision to prosecute the individual and seek a removal order from the very busy immigration courts. Factors for consideration include how many years the person has been living in the U.S., how and when they arrived in the U.S. (as a child 10 years ago?), whether their family members served in the military, and also the person’s relationship to other family members who are U.S. citizens[ii].

The 2011 orders sent to ICE field office directors, special agents in charge and chief counsel focus on the civil immigration enforcement priorities. The memo states in its “Background” section that, “ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

If an undocumented immigrant is arrested and detained on suspicion of being a threat to public safety, as ICE memorandums describe, an attorney can intervene and work to negotiate a release or dismissal of pending charges, as suggested in the Los Angeles Times article suggesting more frequently, ICE is using prosecutorial discretion and letting people go about their lives.  If you want to learn more about prosecutorial discretion or believe someone you know if being improperly detained and prosecuted you can call attorney KiKi M. Mosley to find out what options might be available to help.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Los Angeles Times: Prosecutorial discretion on the rise in immigration courts. By Cindy Chang. Jan. 15, 2014

[ii] U.S. Immigration and Customs Enforcement. Prosecutorial Discretion Memorandum. By John Morton, June 17, 2011.

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