AILA/AIC Report on Prosecutorial Discretion- Additional Resources

Cite as "AILA InfoNet Doc. No. 11141123 (posted Nov. 14, 2011)"

AILA/AIC Survey Report examines the exercise of prosecutorial discretion

Prosecutorial Discretion Report

AILA/AIC's joint report, "Holding DHS Accountable on Prosecutorial Discretion," highlights discrepancies in the exercise of prosecutorial discretion (AILA Doc. No. 11110947). On June 30, 2011, AILA and AIC launched a survey of AILA lawyers and other immigration practitioners regarding DHS' exercise of prosecutorial discretion. This ongoing survey was designed to gather feedback regarding the implementation of two memoranda on prosecutorial discretion issued by ICE on June 17 and a subsequent announcement by DHS on August 18 of plans to review pending cases before EOIR.

As of October 18, 2011, AILA/AIC received 252 case submissions as well as general feedback on individual ICE Field Offices and Officers of Chief Counsel. Based on these responses, the report concludes that most ICE offices have not changed their practices since the issuances of these directives.

Recommendations to DHS :

  1. By early November, DHS and ICE should issue implementing guidance and hands-on training instructing all ICE agents and trial attorneys that they are obligated to exercise discretion pursuant to the guidelines set forth in the June 17 ICE memoranda. Secretary Napolitano should convey to all DHS personnel that this policy has the full backing of her office and that all ICE offices are responsible for its implementation.
  2. By mid-November, DHS should issue similar guidance governing Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS).
  3. DHS should clarify to its rank and file that cases which fall into the enforcement priorities may nonetheless be considered for prosecutorial discretion. If DHS policy categorically excludes certain types of cases from the favorable exercise of prosecutorial discretion, DHS should state that clearly.

Recommendation to DOJ:

  1. The Department of Justice (DOJ), specifically EOIR, should issue guidance to immigration judges explaining their role in cases where prosecutorial discretion has been requested. Specifically, immigration judges should be authorized to grant requests for continuances when prosecutorial discretion is requested.

Additional Resources:

AILA/AIC Press Statement Blogs Memos & Announcements Media Spotlight: