13 However, the breadth and scope of the laws governing deportation and the heightened power that the executive branch enjoys in the area of immigration has meant that successive administrations have been able to use prosecutorial discretion to accomplish what they could not legislatively. Details on the current status of Prosecutorial Discretion as of September of 2022. Prosecutorial discretion can happen in administrative, criminal, and civil contexts, and according to the Supreme Court, "an agency's decision not to prosecute or enforce, whether through a civil or criminal process, is a decision generally committed to an agency's absolute discretion. 84 Although the process was more transparent than it had been before the 1970s—at least the memos that governed prosecutorial discretion were made public—it remained difficult to understand exactly how these decisions were made. First, represented non-citizens are much more likely to win their cases because the avenues for relief currently available are so complicated that most non-citizens only have a realistic possibility of winning with counsel.
For instance, officials with ICE's Enforcement and Removal Operations decide whether to seek custody of a removable noncitizen being held by local law enforcement through issuance of a detainer request. 11 Like in the criminal justice system, prosecutorial discretion is important both in terms of allocating scarce resources and in mitigating unjust outcomes. State of Arizona, State of Montana, State of Ohio v. Immigration Prosecutorial Discretion in 2022. Joseph R. Biden, Jr., Alejandro Mayorkas, Troy Miller, Tae D. Johnson, and Ur Jaddou. OPLA attorneys are now to use their professional judgement to ensure justice in each individual case while adhering to the enduring principles that apply to all of their activities: upholding the rule of law; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment in individual cases, particularly mindful of OPLA's limited resources. In the end, it concludes that the system itself must change in order for prosecutorial discretion to work the way it should. ICE Principal Legal Advisor Kerry Doyle issues a memo specifically regarding PD for immigration court cases.
Defendants can use this as a defense but proving it can be extremely difficult. While scholars such as Shoba Sivaprasad Wadhia and Daniel Kanstroom have previously written about the use of prosecutorial discretion in the immigration context, their focus has been primarily on understanding how it has operated and why it has become so important. 19 Less explored is how often these policies have failed to fulfill their humanitarian objectives and how it has given rise to a whole new problem—individuals like Guadalupe García de Rayos and the DACA recipients who remain in limbo indefinitely. Though it has, in some circumstances, led to positive individual outcomes, it has failed to provide the kind of systemic relief that was promised, both because of the limitations of prosecutorial discretion in general, and because of special characteristics of the immigration system that make it particularly ill-suited for the widespread use of discretion to accomplish humanitarian goals. They may agree to requests for continuances for other reasons, support administrative closure, or agree to applications for relief. Sample prosecutorial discretion request 2012.html. Some examples of ways in which prosecutorial discretion might be exercised by United States government agencies include: How Does the United States Benefit by Allowing Agencies to Exercise Prosecutorial Discretion? The progression of the executive's prosecutorial discretion policies and guidelines track these developments in the immigration system.
148 As a result, many non-citizens are removable for criminal convictions that they pled guilty to on advice of counsel to avoid serving a lengthy sentence at a time when their attorney had no obligation to inform them that the conviction would lead to their deportation. But moving forward, future administrations will need to decide where to spend their political capital on immigration. Moreover, certain features of immigration law, such as the lack of a statute of limitations for most immigration violations, 16 the black-and-white consequences of committing an immigration violation, 17 and the lack of procedural protections for immigrants in removal proceedings 18 make the immigration system uniquely unsuitable for extensive reliance on prosecutorial discretion. 296 Both proposals stem from the widespread belief that the immigration courts as they are currently constituted are beholden to political forces, crippled by overwhelming caseloads, and lacking in procedural safeguards for non-citizens. A single crime involving moral turpitude, one of the categories of crimes that renders an individual deportable, does not render an individual deportable unless it occurred within five years of initial entry. 68 Implicit in these decisions is the belief that legislative reform was unnecessary because DACA—essentially a large prosecutorial discretion program—made it unnecessary. This is very different from the criminal context where prosecutorial discretion can be exercised not only in whether to charge someone, but also in how much time they will serve, either in the decision on what to charge or in a plea agreement. Immigration Attorney Fees: Everything You Need to Know. September 2021 – The "Mayorkas Memo". 2 In 2008, she was arrested by immigration authorities and ordered deported by an immigration judge. Individuals who have been removed from the United States face anywhere from a five-year bar to a lifetime bar on reentry, depending on the grounds of removability. Sample prosecutorial discretion request 2011 relatif. Currently, the average case takes more 855 days to process. You should not contact immigration enforcement authorities and ask for prosecutorial discretion unless you consult an attorney. Miroff, Nick and Maria Sacchetti.
High-Priority Immigration Violators. This includes the power to dismiss some immigration court cases (where the person is not a danger to border security, national security, or public safety). Previously, ICE attorneys fought for deportation in almost every case in immigration court. Sample prosecutorial discretion request 2011.html. "243 Those harms, partially mitigated after DACA went into effect, have returned. 41 Similarly, the Obama administration moved away from large workplace raids and instead focused workplace enforcement on employer violations. Moreover, given the fact that the priorities included individuals who had committed the elements of a crime, even if they had not been convicted, it allowed immigration officials to find almost any reason to designate someone as a priority for removal.
22-3272, on Motion for Stay, United States District Court for the Southern District of Ohio at Dayton; No. In addition to refocusing enforcement efforts on national security, public security, and border security, the Doyle memo, tracking the Mayorkas memo, instructs officials to consider a wide range of mitigating or aggravating factors such as a migrant's criminal history, age, contributions to the United States, length of U. New Memo About Prosecutorial Discretion in Immigration Court. residence, and eligibility for humanitarian protection. There are no juries, and no possibility for jury nullification, 194 which is a rare but important consequence for a prosecutor who has abused his or her authority. Prosecutors may use prosecutorial discretion in many cases.
26 There is simply no way that the government can fully enforce all of the criminal and civil offenses on the books today; doing so would require dedicating vastly more resources than are currently available for enforcement activities. 1991) ("Because a deportation proceeding is civil, not criminal, in nature, various constitutional protections are not required. This tradeoff may be worth taking because if their case continues in court and is denied, they may not be deported under the Doyle memo guidelines, but a future administration with different enforcement priorities might carry out their removal. Some have written about the need to revise the criminal grounds of deportability to decrease the number of minor crimes that might render a non-citizen deportable, or even get rid of the criminal grounds of deportability altogether. The harsh reality is that most people who are deported will never be permitted to return legally. Finally, there is precedent for the criminal grounds of removability to have a statute of limitations of sorts. Prosecutorial discretion opportunities can also be authorized through specific programs, such as Deferred Action for Childhood Arrivals (DACA). There are currently 1. Fourth, discretion will presumably differ for different kinds of cases, leading to diverse impacts on noncitizens. The main problem continued to be that DACA provided only temporary status that could be revoked at any time. Whether the criminal act supports a determination that the individual would be a threat to people's safety.
Disadvantages of Prosecutorial Discretion. There may be objections to all of these outcomes. In June 2020, the Supreme Court decided Department of Homeland Security v. Regents of the University of California, which held that the Trump administration's attempt to end DACA was unlawful under the Administrative Procedure Act. 24 Courts have largely taken for granted the power of the executive to determine how to utilize its limited enforcement resources, and have repeatedly held that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. " A non-citizen convicted of a crime thirty years ago remains removable today, despite the passage of time. Therefore, it is likely that the great majority of noncitizens in removal proceedings would no longer face the threat of imminent deportation. Number and Share of Immigration Judge Decisions Ending in Termination, FY 2000-21. 274 However, a discovery-based limitation would also fail to provide many of the benefits that an accrual-based limitation would. The Immigration & Nationality Act says DHS "shall" take in to custody certain individuals. 25 As the sheer number of criminal and civil laws has exploded over the past century, the importance of prosecutorial discretion has only increased. Memorandum from Secretary of Homeland Security to Tae D. Johnson, Acting Director, U. For instance, if someone kills another individual in self-defense and there is enough evidence to support this claim, then the charges may be dropped by the prosecutor, or they may be reduced from murder to manslaughter.
Yet, the program was unable to solve some of the challenges of using prosecutorial discretion as a humanitarian tool in the immigration context. Thus, immigration attorneys often advise foreign nationals to seek prosecutorial discretion only as a last resort if they do not have good defenses to removal or grounds for an appeal. "Prosecutorial discretion" can take place at any stage in a case. Though the administration is advancing the new discretion guidelines as a means of effectively using limited enforcement resources rather than as a backlog-clearing mechanism, the result would be a reduction in the number of court cases pursued by the government. OPLA Attorneys will independently evaluate cases to determine whether to exercise discretion which may include moving to dismiss or administratively close cases, agreeing to stipulate to issues such as eligibility for relief from removal, bond, continuances, waiving appeal or joining in motions to reopen proceedings. Importantly, the instructions distinguish between cases in which noncitizen defendants have legal representation—which in the first quarter of 2022 amounted to 53 percent of pending immigration cases—and those who do not. It was, as Lindsay Pérez Huber has described it, an "'illusion of freedom' that provide[s] limited opportunities, yet, continue[s] to exclude undocumented youth from full participation in American society. It is unclear how this proposal would affect the million or so individuals who already have removal orders, given that statutes of limitations typically only apply to the initiation of proceedings. Generally, government agencies exercise prosecutorial discretion on a case-by-case basis. For more information, read this Politico article, Trump-Appointed Judge Clashes with Biden DOJ in Immigration Suit.