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Immigration Law

Prosecutorial Discretion in Immigration Agencies: A Year in Review

By Shoba Sivaprasad Wadhia

Memos on their proposed use of "prosecutorial discretion" by Immigration and Customs Enforcement and other immigration agencies that were issued in 2011 caused critics to accuse the Obama administration of trying to provide a backdoor amnesty to noncitizens not authorized to be in the United States. Other people said they did not go far enough. Professor Shoba Sivaprasad Wadhia, the founder/director of Penn State's Center for Immigrants' Rights, describes the recent memos and gives their pros and cons.

Professor Wadhia writes: 

"'Prosecutorial discretion' is the authority of an agency to decide to what degree to enforce the law against a particular individual. While prosecutorial discretion has long been used as an enforcement tool by the immigration agency, it gained special attention and popularity in 2011. The government published no less than ten documents on the role of prosecutorial discretion in immigration matters in 2011. This article introduces the concept of prosecutorial discretion, summarizes the related guidance produced in 2011, and offers a short reflection on the fame surrounding prosecutorial discretion.

"Prosecutorial discretion has been part of the American legal system for years, and in the immigration context, rests on two principles - first, the immigration agency lacks the resources to target every person against whom a legally sufficient charge exists; second, removal is inappropriate for certain individuals who present strong equities or related humanitarian factors, but who otherwise lack a formal remedy under the law to prevent removal. While the agency has long counseled its officers and attorneys to exercise prosecutorial discretion as early in the process as possible, this discretion may enter at any enforcement phase. The steps at which prosecutorial discretion may be exercised are plentiful, and include before or after arrest, detention, removal (deportation) proceedings, and appeal. Importantly, an immigration officer has many different tools he may employ to carry out a favorable exercise of prosecutorial discretion. To illustrate, an immigration officer might exercise prosecutorial discretion by cancelling a charging document (Notice to Appear or NTA); granting deferred action; granting a stay of removal; joining in a motion to terminate proceedings; and refraining from executing a removal order, among other actions. While each of these acts is considered a use of prosecutorial discretion, the differences can be significant. For example, a noncitizen who receives deferred action can apply for work authorization, whereas the cancellation of a Notice to Appear provides no independent basis for work authorization."  

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Related links on

Charles Gordon et al., Immigration Law and Procedure §72.03.

Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L. J. 243 (2010).

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