Migration Policy Institute
Prosecutorial Discretion: A Progress Report on Implementing New Guidelines and Policies
Doris Meissner, MPI Senior Fellow and Director of the U.S. Immigration Policy Program
Seth Grossman, Deputy General Counsel, U.S. Department of Homeland Security
Juan P. Osuna, Director of the Executive Office for Immigration Review, U.S. Department of Justice
Jim Stolley, Director, Field Legal Operations, Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement
Crystal L. Williams, Executive Director, American Immigration Lawyers Association
A core principle of criminal and civil law enforcement, prosecutorial discretion has traditionally been unevenly and hesitantly exercised in the immigration system. In a March 2011 report, MPI recommended more systematic use of prosecutorial discretion to ensure that scarce enforcement resources are focused on removal of unauthorized immigrants who represent threats to security and public safety, and to alleviate large and growing backlogs in immigration courts.
Building on existing guidelines for the exercise of prosecutorial discretion in immigration matters, the Department of Homeland Security (DHS) issued updated guidelines in 2011 and directed a review of all current cases in the removal pipeline and on the docket of immigration courts to reflect the new guidance. With a pending caseload of about 300,000, the review–which began in late 2011–is a sweeping, ambitious initiative.
The reviews have been led by trial attorneys in Immigration and Customs Enforcement (ICE) offices around the country and in two pilot projects in immigration courts in Denver and Baltimore. Those pilots were completed in mid-January 2012 and were designed to test procedures and outcomes of reducing the backlog of removal cases pending before and incoming to the Executive Office for Immigration Review (EOIR) of the Department of Justice. In the pilot districts, the docket review resulted in 16 percent of cases being administratively closed, allowing individuals who have been deemed not to pose security or public safety risks to remain in the United States, although without a changed legal status. In addition, ICE trial attorneys have and are continuing to review thousands more cases to complete the review initiative.
In 2012, DHS began reviewing current cases and immigration courts experienced changes in their caseloads that reflect the focus on high priority cases and the lessons of the pilots. This MPI briefing explores the current status of the initiative, the lessons learned from the Denver and Baltimore pilots, the results to date, estimated timelines, issues that have arisen that ICE and EOIR have addressed or are addressing, and issues that still need to be addressed with proposed solutions.