Prosecutorial discretion is a little-known but highly valuable tool for dealing with immigration cases. It allows immigration agency lawyers to focus their resources on cases actually worth prosecuting. This policy is something that all immigration lawyers should know about. Although, as the term implies, prosecutorial discretion is completely in the prosecutor’s hands, defense attorneys should know how to push for its application for their clients.

The idea of prosecutorial discretion in immigration trials goes back several decades. The policy first developed during a particularly famous immigration case. In 1975, John Lennon’s attorney used a Freedom of Information Act request to get the Immigration and Naturalization Service (INS) to disclose its prosecutorial discretion policy. Once revealed, this entrenched policy indicated that agency attorneys designated some immigration cases as “non-priority,” taking into account the alien’s age, health, family ties, and how long he or she had been in the United States when deciding whether to prosecute.1

This policy continued under the Meissner Memo, issued by INS Commissioner Doris Meissner in 2000.2 Even after the 2002 Homeland Security Act abolished the INS, the Department of Homeland Security (DHS) continued to encourage prosecutorial discretion in immigration cases. A June 2010 memo stated that Immigration and Customs Enforcement (ICE) prioritizes prosecution of recent illegal aliens, aliens who pose a risk to public safety or national security, and aliens who are fugitives or who obstruct immigration enforcement.

Most recently, in March 2011, the Director of ICE, John Morton, issued a memorandum on prosecutorial discretion that expanded the policy. The Morton Memo indicates that the agency has the authority to choose, on a case-by-case basis, not to enforce immigration laws. While the Meissner Memo advised using prosecutorial discretion in cases that involved a “substantial federal interest,” the Morton Memo goes further by specifying when to apply discretion.

The primary Morton Memo instructs agency attorneys to avoid prosecuting illegal aliens “with close family, educational, military, or other ties in the U.S.” and rather to focus on prosecuting individuals who pose a serious threat to national security. The secondary Morton Memo explains that the agency should not prosecute crime victims or witnesses, and “plaintiffs in good faith civil rights lawsuits.”

Why Discretion?

Morton implemented the revised prosecutorial discretion policy to allocate ICE’s limited resources more effectively. Rather than focusing on all illegal aliens indiscriminately, the agency would instead focus on potentially dangerous individuals. This was more of a necessity than a choice, since ICE only has enough funding to remove roughly 400,000 aliens per year, less than 4 percent of the total illegal population. Prioritizing cases is therefore essential for ICE to successfully protect national security.

When considering whom to prosecute, ICE officers evaluate the potential defendant’s level of threat to national security, public safety, and border security. Prosecutorial discretion also stems from the idea of “compassionate and humanitarian use of law-enforcement tools.”3 This is especially helpful in instances when an alien originates from a nation that falls under the U.S. watch list for terrorism. In a recent case, the author’s firm reached out to the DHS on behalf of a Pakistani alien who was arrested simply because he was from a country classified as a state sponsor of terrorism, despite the fact that he had been living in the United States for nearly 20 years and had three children. Under the principles of the Morton Memo, the DHS agreed to hold proceedings in abeyance, pending a decision on his wife’s application for cancellation of removal.

The Morton Memo further updated the prosecutorial discretion policy in several important ways. Attempting to streamline the policy, the memo allows ICE trial attorneys to review decisions made by other DHS employees and dismiss low-priority cases, and instructs attorneys to consider dismissing cases even if the defense has not requested that discretion be used. This represents a major shift, since prosecutors are now instructed to proactively consider using discretion to dismiss cases.

Factors in Applying Discretion

ICE’s prosecutorial discretion policies take into account an alien’s family situation and the presence of relatives in the United States, how the person entered the United States, how much education the alien has pursued in this country, military service, criminal history, immigration history, community ties, age, immigration proceedings’ history, and the level of threat the alien poses to national security and public safety. For example, the author’s firm persuaded the DHS to exercise prosecutorial discretion in a recent case of an alien facing removal from the United States as a result of a DWI arrest, despite the fact he had lived in the United States for 19 years, was married to a U.S. citizen, and had three U.S. citizen children.

The Morton Memo also requires prosecutors to exercise special care when dealing with cases affecting veterans and current U.S. Service members, long-time lawful permanent residents, minors and the elderly, pregnant or nursing women, victims of crime, disabled individuals, and those with serious health conditions.

Prosecutor’s Decision

An alien must be undergoing removal proceedings to be eligible for dismissal of the case at the prosecutor’s discretion. There is no application for this process. The Morton Memo emphasizes that prosecutors have a lot of leeway in deciding when to exercise prosecutorial discretion. It provides a list of potential circumstances to consider when using discretion and indicates that prosecutors can consider other factors as well. Prosecutors therefore have a great deal of flexibility in deciding when and how to use discretion.

The widespread use of prosecutorial discretion does not mean that cases will be dismissed automatically even if an alien satisfies all the conditions for it to apply. There is still an element of human subjectivity involved, since the prosecutor is ultimately the only person who can apply prosecutorial discretion. While a judge can dismiss an immigration case for a variety of reasons, he or she cannot decide when to exercise prosecutorial discretion.

Even when the prosecutor decides to exercise prosecutorial discretion, the dismissal of the case may still be hindered. For example, in the aforementioned case involving the alien who faced removal due to a DWI arrest, a Texas immigration judge was able to deny all steps by the law office and DHS to reopen proceedings to allow the alien to adjust to permanent resident status, even though he satisfied all the requirements. Nevertheless, the DHS was ultimately able to reverse the decision in an appeal to the Board of Immigration Appeals.

Prosecutorial discretion can come into play at any stage of the immigration trial process. An enforcement officer could decide, for example, not to bring charges against someone who is working in the United States but has an expired visa. Once someone is arrested, an officer can decide to release that person from detention if he or she does not pose a flight risk. Later, an officer can decide not to serve the individual with a Notice to Appear. ICE agents could also cancel a notice to appear after it has been issued, or even cancel a removal order. Early application of the prosecutorial discretion is definitely preferred, since the longer a case goes on, the more expensive it is for the government.

Conclusion

Prosecutorial discretion can be a useful tool when handling immigration cases. Attorneys can request that the prosecutor decide to drop the case by explaining how their clients satisfy the guidelines in the Morton Memo. Convincing the prosecutor that your client meets some or many of the conditions laid out in the memo will make it easier for him or her to see the merits of dismissing your case. Remember that getting the prosecutor to dismiss the case is not a sure bet. Nevertheless, knowing that ICE policies encourage strategically dismissing cases against people who pose no security threat can be useful in defending your clients in immigration cases.

Pankaj Malik is the managing partner at Malik & Associates in Queens.

Endnotes:

1. Shoba Sivaprasad Wadhia, “The Morton Memo and Prosecutorial Discretion: An Overview,” Immigration Policy Center, the American Immigration Council, Accessed Oct. 3, 2011. Available at http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview.

2. Shoba Sivaprasad Wadhia, “Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion,” Immigration Policy Center, the American Immigration Council, Accessed Oct. 3, 2011. Available at http://www.immigrationpolicy.org/special-reports/reading-morton-memo-federal-priorities-and-prosecutorial-discretion.

3. John Morton, “Exercising Prosecutorial Discretion Consistent With the Civil Immigration Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” U.S. Immigration and Customs Enforcement, June 17, 2011.