“Prosecutorial discretion,” in the context of federal immigration law, refers to the right of immigration authorities to defer prosecution of certain cases in order to focus resources on areas of higher concern. The Obama administration, working with the Department of Homeland Security (DHS), has developed a series of criteria for the immigration agencies to follow when deciding what cases to pursue. It expanded the criteria this summer to include individuals who entered the United States without inspection as children. This policy is known as Deferred Action for Childhood Arrivals. More recently, guidelines from DHS expanded the definition of “family,” with regard to deferring cases where an individual has started a family in the U.S., to include long-term same-sex relationships.
Immigration and Customs Enforcement (ICE), part of DHS, issued a memorandum in June 2011 that identified “enforcement priorities” and outlined the elements of prosecutorial discretion. Recognizing its limited resources, ICE stated that its agents should focus on cases that reflect the enforcement priorities of promoting “national security, border security, public safety, and the integrity of the immigration system.” June 2011 Memo at 2.
Prosecutorial discretion covers a wide range of actions, or lack of action, as the case may be, ranging from deciding not to stop or question a person to dismissing pending removal proceedings. ICE provided a lengthy list of factors for personnel to consider when determining whether to pursue a matter. Of particular note are factors relating to a person’s length of time in the U.S., family connections or roots in the community, and family members who are United States citizens or permanent residents. Statistics released by ICE in April 2012 indicate that the agency had reviewed over 200,000 pending cases and identified more than 16,000 that fit the criteria for prosecutorial discretion.
The DACA policy, established by the White House in June 2012, offers a reprieve from deportation and employment authorization to individuals who arrived in the United States at the age of fifteen or younger and who meet other criteria. The rationale behind the policy was to mitigate what seemed like punishment for people who, while they may have entered the U.S. without documentation, did so without fault as children. To qualify for DACA, an applicant must be enrolled in school, must have completed high school or its equivalent, or must have served honorably in the U.S. Armed Forces.
DHS issued instructions to ICE in September 2012 to include same-sex couples in the definition of “family” used in prosecutorial discretion analyses. People may qualify for prosecutorial discretion if they are in an exclusive domestic partnership with someone, intend to stay that way, and share a residence and expenses. The effect of this policy change is that someone in a committed relationship with a member of the same sex may qualify for prosecutorial discretion if their partner is a U.S. citizen or permanent resident.
It is important to remember that prosecutorial discretion confers no rights on a person. It is not a path to a visa, green card, or citizenship. It is simply a decision by law enforcement and the government not to pursue a claim that might otherwise be viable. Just as the government has discretion to defer an investigation or removal case, it has discretion to renew it again.
The immigration attorneys of Samuel C. Berger, P.C. help immigrants seeking visas through family members or employment, and help New York or New Jersey businesses to petition for skilled immigrant employees. To schedule a consultation with one of our lawyers today, contact us online or at (212) 380-8117.
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (PDF file), Department of Homeland Security, June 15, 2012 (source)
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (PDF file), Immigration ad Customs Enforcement, June 17, 2011 (source)
More Blog Posts:
ICE Fines New Jersey Business Over $600,000 for Immigration Employment Violations, New York & New Jersey Immigration Lawyer Blog, September 21, 2012
New White House Immigration Policy Offers Opportunities and Risks for Young Undocumented Immigrants, New York & New Jersey Immigration Lawyer Blog, June 21, 2012
USCIS Announces Revisions to Form Used to Verify Employees’ Eligibility to Work, New York & New Jersey Immigration Lawyer Blog, March 29, 2012
Photo credit: ‘JustsayIdo’ by Davidlud (Own work) [GFDL, CC-BY-SA-3.0 or CC-BY-SA-2.5], via Wikimedia Commons.