Featured Issue: Prosecutorial Discretion

As the Supreme Court prepares to hear oral arguments in United States v. Texas, this resource page offers background information on the historical use of prosecutorial discretion, its importance as a tool for Immigration & Customs Enforcement (ICE), and AILA’s support for the Biden Administration’s efforts to use prosecutorial discretion as it conducts immigration enforcement.

Litigation State of Play

In September 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued enforcement priorities to the immigration enforcement workforce. As previously done by leaders of DHS and legacy Immigration & Naturalization Service (INA), Secretary Mayorkas outlined what factors made someone a priority for immigration enforcement. The policy took effect on November 29, 2021. Before these guidelines, DHS had issued a set of interim priorities, which were also challenged in court, but remained in effect until November 29, 2021.

Since then, two federal lawsuits brought and led by Texas and Ohio along with other states have challenged the September 2021 (final) enforcement priorities. Both states asked for preliminary injunctions to temporarily restrain the Biden administration from relying on Secretary Mayorkas’s enforcement guidelines pending litigation. In the Ohio lawsuit, the Sixth Circuit stayed a lower court’s preliminary injunction. However, in the Texas case, a district court went as far as to strike down the enforcement guidance. This led to the enforcement guidance being vacated as of June 25, 2022, pending appeal.

It is the Texas case, United States v. Texas, that is before the Supreme Court. At issue, is whether the state plaintiffs can prevent the Biden Administration from adopting and implementing its enforcement guidelines. This has implications for all migrants, regardless of whether they are in or outside of immigration detention. For additional information on the litigation, see SCOTUS Refuses to Stay District Court’s Vacatur of Mayorkas Enforcement Memo (AILA Doc. No. 22061302).

Table of Contents

AILA Statements

American Immigration Council Resources

Government Releases

Twenty Years of Prosecutorial Discretion in Immigration Enforcement

  • The End of Immigration Enforcement Priorities Under the Trump Administration – March 7, 2018
    The American Immigration Council provides a fact sheet that explains the shift in enforcement philosophy under the Trump administration and outlines the effects of this change. This approach to enforcement diverts the attention of law enforcement agencies from those who are serious public threats.
  • American Immigration Council - The President’s Discretion, Immigration Enforcement, and the Rule of Law – August 26, 2014
    The President has the legal authority to make a significant number of unauthorized migrants eligible for temporary relief from deportation that would be similar to the relief available under the Deferred Action for Childhood Arrivals (DACA) program.
  • CRS Report on Prosecutorial Discretion in Immigration Enforcement – January 17, 2013
    Congressional Research Service (CRS) report from 1/17/13 called "Prosecutorial Discretion in Immigration Enforcement: Legal Issues" which addresses the constitutional and other legal foundations and issues related to the doctrine of prosecutorial discretion.
  • ICE Memo on Prosecutorial Discretion for Long-Term, Same-Sex Partners – October 5, 2012
    An ICE memo dated 10/5/12 clarifying how prosecutorial discretion should apply to family relationships involving long-term, same-sex partners, including information on which same-sex relationships “rise to the level of family relationships.”
  • American Immigration Council: Special Report- Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System – April 11, 2012
    Discretion takes many forms throughout the immigration enforcement process. Every removal of a noncitizen from the United States, for example, reflects a series of complex choices which reflect discretion.
  • Prosecutorial and Custody Discretion for Nursing Mothers – November 7, 2007
    Memo from ICE Assistant Secretary Julie Myers regarding exercise of prosecutorial discretion for arrest and custody determinations for nursing mothers.
  • ICE Prosecutorial Discretion Memo – October 24, 2005
    A 10/24/05 memo from William Howard, ICE Principal Legal Advisor, discussing factors to be considered prior to commencement or continuation of removal proceedings.
  • INS Memo on Exercising Prosecutorial Discretion – November 17, 2000
    A 11/17/00 memo from Doris Meissner, Commissioner (INS) outlining considerations and procedures for the exercise of prosecutorial discretion in all stages of the enforcement process.



Cite as AILA Doc. No. 22111701.