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
