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Prosecutorial Discretion

What is Prosecutorial Discretion?

Prosecutorial Discretion is the power of a law-enforcement officer or a government agency to bring charges and decide how to pursue each case. In immigration law, an immigration officer uses prosecutorial discretion when he or she chooses to prioritize enforcement against some, but not other, individuals. When an ICE officer declines to pursue a case against a person, he or she has favorably exercised prosecutorial discretion.

How Did Trump’s January 2017 Executive Order Change Prosecutorial Discretion?

While President Obama was in office, USCIS issued a November 20, 2014 memorandum that provided instructions to DHS officers on when and how to exercise prosecutorial discretion in immigration cases. The 2014 memorandum provided new guidance on when an undocumented immigrant should be considered an “enforcement priority” and when prosecutorial discretion should be used. It expanded the number of individuals who would be de-prioritized for detention and deportation while focusing on other more serious offenders.

On January 25, 2017 Trump issued an Executive Order which nearly eliminated former President Obama’s more generous use of prosecutorial discretion and makes all undocumented immigrants immediately subject to enforcement.

What are the New Enforcement Priorities?

The January 25, 2017 Executive Order instructs DHS’s to enforce immigration laws against “all removable aliens” and further states that DHS will no longer “exempt classes or categories of removable aliens from potential enforcement.”

The Executive Order requires the immediate enforcement of immigration laws against two groups of individuals:

#1: Individuals who are inadmissible and deportable under specific statutory grounds:

  • INA 212(a)(2) (criminal and related inadmissibility grounds);
  • 212(a)(3) (security and related inadmissibility grounds);
  • 212(a)(6)(C) (fraud, misrepresentation inadmissibility grounds);
  • 235(b) (expedited removal of inadmissible “arriving aliens” and other noncitizens apprehended in the interior);
  • 235(c) (expedited removal based on security and related grounds);
  • 237(a)(2) (criminal grounds of removal);
  • 237(a)(4) (security and related grounds of removal).

#2: Individuals who are removable and have engaged in the following activities:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense, where such charge has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense (including minor infractions such as driving without a license);
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety.

If a Person is a “Priority” Will She or He Be Deported?

The memorandum instructs DHS to arrest, apprehend, and initiate enforcement actions against “any alien whom an immigration officer has probable cause to believe” has violated the immigration laws. The Executive Order further instructs DHS to refer “any alien subject to removal under any provision of the INA” for criminal prosecution and to start removal proceedings against any such person. Although DHS officers can – “on a case-by-case basis in consultation with the head of the field office” – use prosecutorial discretion and not pursue enforcement activities against a specific person, the Executive Order significantly diminishes the use of prosecutorial discretion under the Trump Administration. The Executive Order essentially equates to a large-scale plan to deport any and all undocumented immigrants and to fully enforce all laws with little consideration to limited government resources or humanitarian considerations of an individual case.

When Does the New Enforcement Priority Guidance Take Effect?

The guidance took effect on January 25, 2017.

Contact one of our immigration attorneys at Becker & Lee LLP to learn more about how we can help.