Day 276: Prosecutorial Discretion
Photo by Tingey Injury Law Firm on Unsplash
In 2021, DHS Secretary Alexander Mayorkas issued a memorandum guiding Immigrations and Customs Enforcement prosecutors on how to exercise prosecutorial discretion (“PD”). Because the executive branch has the inherent power under the Constitution to enforce the laws, prosecutors have the power to decide which cases to pursue and which to dismiss. State and federal prosecutors exercise this kind of discretion all the time, and immigration prosecutors are no different in this respect.
The Mayorkas Memo immediately faced a challenge by Texas and other states, who alleged that the memo exceeded the secretary’s discretion. In June 2023, the Supreme Court dismissed the case, saying the states lacked standing. Only parties who faced possible detention and removal, the Court said, could meet the requirement of Article III of the Constitution that courts decide only live “cases” or “controversies.”
PD Negotiations
This week, a team of students in the Immigration Law Clinic is making final preparations to present a case in Immigration Court. Part of that process requires contacting the ICE prosecutor to narrow the issues for trial. In cases that appear to qualify for PD based on the Mayorkas Memo, advocates will also submit a request by email to the prosecutor, presenting arguments and evidence why ICE should grant PD. (Actually we usually make the request sooner, but busy ICE prosecutors rarely respond until the week of trial.)
The Mayorkas Memo outlines three categories of cases that DHS will prioritize for prosecution: national security, public safety, and border security. Where a respondent has no history that suggests a threat to national security or public safety, and where the respondent either entered the country lawfully or entered unlawfully on or before November 1, 2020, counsel can argue that ICE should exercise PD. Advocates will also emphasize other factors that favor the respondent, such as health issue, age, or dependent U.S. citizen family members.
Where the prosecutor shows interest in granting PD, negotiations begin. ICE will usually ask follow-up questions to show that the respondent is not a “priority.” Counsel will provide additional information and evidence to try to satisfy the prosecutor’s concerns.
If the prosecutor agrees that the respondent is not a priority and that it would be in the public interest to spend government resources focusing on other cases, ICE and respondent’s counsel will file a motion mutually requesting that the immigration court terminate (or sometimes indefinitely close) the case. The ultimate decision remains with the court.