Rates for Prosecutorial Discretion in Immigration Cases on the Rise

Prosecutorial JusticeFederal immigration prosecutors are using prosecutorial discretion more frequently, according to 2013 data, resulting in a higher likelihood that individuals facing deportation will have their cases dismissed.  As a recent Los Angeles Times article explains, prosecutors are increasingly likely to find mitigating factors allowing cases to be dismissed. “8.5% of cases closed in immigration court list ‘prosecutorial discretion as the reason for dismissal” in 2013, compared with 4.7% in 2012. Some courts have seen closure figures reaching up to 20%, with cases involving prosecutorial discretion as high as 24% in Los Angeles.

Despite the rising rate of the use of discretion, some jurisdictions experience significantly lower rates of cases involving prosecutorial discretion, such as New York City at 3.7% and Houston at 1.7%. Moreover, some researchers have suggested, “a high [prosecutorial discretion] court closure rate may be a sign that inadequate review of cases is taking place” before a removal order is filed.

John Morton, the formal director of Immigration and Customs Enforcement (ICE) formalized the use of prosecutorial discretion in a 2011 memo. In the memo, prosecutors were instructed to consider factors like community ties, family member who are U.S. citizens or who have served in the military, whether the person came to the U.S. as a child, and how long they have lived in the U.S.

In recent years, two of these factors have become particularly important with specific protections being advanced for young immigrants who came to the U.S. as children and those who have close relatives serving in the military.

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