DHS Prosecutorial Discretion Initiative Falls Short

What this shows is that the «prosecutorial discretion initiative» announced last year by Immigration Customs and Enforcement (ICE) is very limited and selfishly given by ICE. It also goes to show that this discretion should not be used instead of a good defense that can solve the legal situation of clients in front of judges.

– New information released today shows that implementation of «prosecutorial discretion» by Immigration Customs and Enforcement (ICE) officers, agents, and attorneys has been far less effective than the Department of Homeland Security (DHS) originally led the public to expect. The policy, announced last year, clearly delineated the criteria ICE should consider before initiating or pursuing enforcement actions, such as good behavior and family ties to America. It also detailed a number of different ways that discretion could be exercised. The policy was intended to help enforcement officials focus resources on people who would pose real threats to public safety.

American Immigration Lawyers Association

«The prosecutorial discretion initiative has failed,» said Eleanor Pelta, President of the American Immigration Lawyers Association (AILA). «DHS has reviewed over 288,000 cases, a paltry 1.5 percent of the cases were actually granted discretion, and even those were granted only a temporary reprieve, keeping their lives completely in limbo. That’s a very low rate-far less than the percentage that succeed in obtaining relief in court.» DHS indicated that it intends to make more offers of prosecutorial discretion in the upcoming weeks, but does not expect overall numbers to grow to more than what would amount to 4 or 5 percent.

«The prosecutorial discretion policy announced a year ago has never truly been implemented. In practice, the focus of the effort has been so narrow that most of the announced policy has been left by the wayside,» said Pelta referring to the memorandum ICE Director John Morton issued in June 2011. Subsequent instructions focused prosecutors on only a narrow portion of the cases encompassed in the June 2011 policy, and offered only the stingiest and least effective forms of relief, when relief was offered at all. In particular, prosecutors were instructed to use administrative closure-essentially putting cases on the shelf-as the only form of prosecutorial discretion.

«By so severely narrowing the scope of their efforts, DHS put this policy on the wrong track,» said Pelta, «Nearly half of the people offered prosecutorial discretion turned down offers because the offer did not fit their situation, and because they already had strong claims for relief before the courts. Most problematic is that DHS has not provided a way for these people to work legally even on a short term basis.

«These immigrants pose no threat to our national security and simply want to build a better life, contribute to the American economy, and raise their children. Instead, if they accept this offer, they would remain in limbo, unable to work legally or get a driver’s license. AILA and its members have been trying to explain these challenges to the Administration for the past year. Maybe seeing these numbers will compel them to reconsider how they are implementing this.»

The issue of prosecutorial discretion is one of the topics that will be discussed at AILA’s Annual Conference next week in Nashville, TN. Almost 3,000 immigration attorneys and other stakeholders will gather to share information and discuss topics including the Secure Communities initiative, business immigration, and the DREAM Act. More information is available on AILA’s website.


The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Eliana Phelps

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