The discretion and reasonable personal judgment of the prosecutor whether to bring a case, not bring a case or plea bargain. In the context of immigration law, the relevant law enforcement agency is. In law, selective enforcement occurs when government officials such as police officers, prosecutors, or regulators exercise enforcement discretion, which is the power to choose whether or how to punish a person who has violated the law. Introduction in the united states, prosecutors play the central role in the criminal justice systems of the federal and state governments. Capitalizing on this variance, we study the prosecution of immigration offenses in the four california us attorneys offices from 1997 to 2007.
In prosecutorial decisionmaking there is a conflict btween the need for certainty. Recent immigration and customs enforcement memoranda. Prosecutorial discretion applies in the law enforcement context only. In the immigration context, research conducted by shoba sivraprasad wadhia shows that immigration agencies and officials have a long and rich history of using prosecutorial discretion to resolve cases involving significant equities, policy calls, or practical resource issues. A prosecuting attorney has power on various matters including those relating to choosing whether or not to bring criminal charges, deciding the nature of charges. Prosecutorial discretion is the authority of an agency or officer to decide what charges to bring and how to pursue each case. Citizenship and immigration services, and cbp customs and border patrol officers all have authority to exercise prosecutorial discretion.
A prosecuting attorney has power on various matters including those relating to choosing whether or not to bring criminal charges, deciding the nature of charges, plea bargaining and sentence recommendation. Inherent in the function of the take care clause is the ability of the president to target some immigration cases for removal and use prosecutorial discretion in others. According to the definition of the discretionary right of the prosecution, prosecutorial discretion definition is the decision you can make a body or officer to decide whether or not to apply the law in both civil and criminal proceedings. We will discuss enforcement practices, risk assessment for clients, and arguments and strategies for advocates to obtain prosecutorial discretion for your clients. How to get dhs to act in favor of your client, on which much of this fact sheet is based. Defining prosecutorial discretion with an invitation to the court to redefine abuse of process case commented on. Understanding prosecutorial discretion in immigration law. The authority to exercise discretion in deciding when to prosecute and when not to prosecute based on a priority system has long been recognized as a critical part of u. Immigration enforcement priorities of the agency for the apprehension, detention, and removal of aliens, builds upon prior prosecutorial discretion guidance reaching back to 1976 and outlines the nature of prosecutorial discretion, the personnel empowered to. An analysis of prosecutorial decision making ii this document is a research report submitted to the u. Both ice and uscis officers have the authority to exercise prosecutorial discretion. Defining prosecutorial discretion with an invitation to. Jun 11, 2012 another exercise of prosecutorial discretion is known as administrative closure. A district attorney has broad discretion to bring charges, or chose not to do so, and an ethical obligation to use that discretion to impartially enforce the laws of state.
A lawenforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. Selfhelp guide for a prosecutorial discretion request. Within the context of immigration, ice immigration and customs enforcement, uscis u. First, a prosecutor may not base a prosecution on an unjustifiable standard such as race, religion, or other arbitrary classification oyler v. Pdf prosecutorial discretion and international criminal. Prosecutorial discretion immigration the shulman law group. Requesting prosecutorial discretion for individuals in removal proceedings or detention while the injunction in texas, et al. See doris meissner, immigration and naturalization service ins. Prosecutorial discretion refers to the fact that under american law, government prosecuting attorneys have nearly absolute powers. The 2011 morton memo laid out enforcement priorities for the u. Citizenship and immigration services and cbp customs and border patrol officers have the authority to. Understanding immigration prosecutorial discretion and united states v.
Prosecutorial discretion largely refers to the wide latitude afforded to prosecutors to make decisions regarding the filing of charges or lack there of against a particular person or entity. Generally, this discretion determines whether the government is going to go ahead with the enforcement of a case. One reason for federal prosecutors increased discretionary power has been the enactment of federal sentencing guidelines, which have had the effect of transferring discretion in sentencing from judges to. For the purposes of your work with raio, you will be involved in exercising adjudicative discretion, but it is important to know about prosecutorial discretion to help. In ferguson, missouri, prosecuting attorney robert mcculloch has come under fire for his decision to take the case. Prosecutorial discretion is the authority of either an agency or officer to determine what charges to bring and how to pursue an individuals civil, administrative, criminal, or immigration case.
Pdf on mar 1, 2016, simeon peter sungi and others published prosecutorial discretion and international criminal justice find, read and cite all the research you need on researchgate. In february the government implemented changes that essentially make everyone who is an undocumented immigrant a priority for deportation. Legal issues congressional research service summary the term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to. Prosecutorial discretion refers to the authority of the department of homeland security to decide how the immigration laws should be applied. Prosecutorial discretion is the general concept that prosecutors are empowered with the ability to choose what to prosecute andor what punishments to pursue. The role of prosecutorial discretion in immigration cases by shoba sivaprasad wadhia, she goes the distance in educating the reader on all of the elements of the laws pertaining to deportation.
The general counsel shall issue guidance consistent with these principles to all attorneys involved in immigration proceedings. Notably, in criminal law, prosecutorial discretion has existed for hundreds of years. Enforcement of the immigration laws to serve the national. Recent immigration and customs enforcement memoranda on. At the forefront is the prosecutorial discretion law, which was made famous by the case against john lennon and his wife, yoko ono. Prosecutorial discretion miami immigration defense.
There are two notable limits on the prosecutors discretion to prosecute. Presenters lena graber, special projects attorney ilrc lena has been involved in immigrant rights work for ten years, focusing on enforcement and detention issues. Last week, directors sarah saldana of immigration and customs enforcement ice and leon rodriguez of u. Except as specifically provided in this memorandum, prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws. Prosecutorial discretion or selective prosecution above. For the purposes of your work with raio, you will be involved in exercising. To date, dhs has released statistics on three occasions. For example, ice can join you in asking an immigration judge to close your case. Anderson, 2014 scc 41 with its unanimous judgment in r. See doris meissner, immigration and naturalization service ins commissioner, exercising prosecutorial discretion. Prosecutorial discretion resources national immigration law.
Which undocumented persons can be helped by prosecutorial. Prosecutorial discretion in immigration law enforcement. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving costeffective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. The theory of prosecutorial discretion in federal law. Yet there is a dearth of literature on the role of prosecutorial discretion in immigration law. Prosecutorial discretion may be exercised at any stage of an immigration case.
Basically, if you are in immigration proceedings and are granted prosecutorial discretion, it means that your case moves to the. United states remains in effect introduction on february 16, 2015, a federal district court granted a preliminary injunction2 that blocks the. Citizenship and immigration services uscis testified before the senate committee on the judiciary in a hearing focused on the shabby state of immigration law enforcement, and most particularly on sanctuaries that refuse to honor ice detainers, leading to murders throughout. Practice alert1 requesting prosecutorial discretion for. It was a common reference point for the immigration agency in early policy documents describing prosecutorial discretion. The role of prosecutorial discretion in immigration law by. More recently this has become a topic of great discussion in the illegal immigration debate in the united states. Prosecutorial discretion law and legal definition uslegal, inc.
Defining prosecutorial discretion with an invitation to the. Prosecutorial discretion the justification obama is using for his orders granted to a single beneficiary or a few beneficiaries based on the particular and unusual facts of. The initiative was officially launched in november 2011 and is expected to continue for much of 2012. The role of prosecutorial discretion in immigration law. Anderson, 2014 scc 41, the supreme court has clarified the scope of prosecutorial discretion, distinguishing it from matters that go only to tactics and conduct before the. Prosecutorial discretion itself is derived from the united states and state constitutions, but case law is primarily responsible for the doctrine s development. Oct 01, 2009 similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving costeffective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. It has been the subject of much litigation because pro. Ice attorneys may exercise prosecutorial discretion in any immigration removal proceeding before eoir, on referral ofthe case from eoir to the attorney general, or during the pendency,ofan appeal to the federal courts, including a proceeding proposed or initiated by cbp or. You should ask ice to use its prosecutorial discretion only if.
Drawing important and relevant lessons from the criminal and administrative law, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and, in some instances, misguided. In immigration cases, prosecutorial discretion primarily is exercised with. The scope of discretion is defined by what type of discretionary decision is being made. Recently there has been a lot of talk in the immigration world about prosecutorial discretion. Prosecutorial discretion gives ice the authority to decide to when and to what extent it will enforce the law against a specific person. In addition to refusing to exercise prosecutorial discretion, ice might also try to remove deport you.
Broadly, prosecutorial discretion is the discretion or leeway that any law enforcement agency whether its a local criminal prosecutors office or the federal department of homeland security has to decide when and how to enforce the law. The supreme court has recognized the role of prosecutorial discretion in the immigration system, 30 where congress has delegated most discretionary functions to dhs. Prosecutorial discretion in las vegas nevada immigration. Prosecutorial discretion resources national immigration. When a removal proceeding is administratively closed, it is indefinitely removed from the docket of an immigration judge or the board of immigration appeals until one or both parties ask for it to be recalendered. Prosecutorial discretion in immigration law refers to the decision the department of homeland security dhs1 makes about whether to enforce the immigration law against a person or a group of. Prosecutorial discretion in las vegas nevada immigration cases. In order to understand prosecutorial discretion, we must understand what the position of a prosecutor entails. The biased use of enforcement discretion, such as that based on racial prejudice or corruption, is usually considered a legal abuse and a threat to the rule of law. May 26, 2011 in the immigration context, research conducted by shoba sivraprasad wadhia shows that immigration agencies and officials have a long and rich history of using prosecutorial discretion to resolve cases involving significant equities, policy calls, or practical resource issues.
Oct 14, 2017 inherent in the function of the take care clause is the ability of the president to target some immigration cases for removal and use prosecutorial discretion in others. In tracing the federal case law on prosecutorial discretion to the eighteenth century, one can identify a connection between the modern theory of prosecutorial discretion and a writ of english criminal procedure that substantially predated the american separation of powers doctrine. Or, ice might agree to ask an immigration judge to reopen your case so that you. The legal definition of prosecutorial discretion is discretionary powers exercised by the governments prosecution service such as whether to prosecute charge recommended by police, to stay an ongoing proceeding, plea bargaining, or the taking over of a private prosecution. Samuel weiss faculty scholar and clinical professor of law at penn state law. Prosecutorial discretion law and legal definition prosecutorial discretion refers to the fact that under american law, government prosecuting attorneys have nearly absolute powers. May 31, 2017 prosecutorial discretion is an old term that describes the personal authority that an immigration agent or officer has to be able to make decisions on what kinds of charges could be lodged on an individual immigration case. This analysis allows us to determine the relative weight of centralized influences relative to local influences on the exercise of prosecutorial discretion in immigration offenses. Definition of prosecutorial discretion law dictionary.
Prosecutorial discretion to take an enforcement action does not modify or waive any legal requirements that apply to the action itself. Basically, while some acts might technically constitute a crime, these acts dont always warrant punishment or prosecution especially when mitigating circumstances are taken. Prosecutorial discretion in immigration enforcement. If you are an alien in immigration court proceedings, its important that you and your lawyer understand what prosecutorial discretion is and how it might help your case. Exercising prosecutorial discretion consistent with the civil. Legal issues congressional research service summary the term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. This guide is not intended to provide legal advice or serve as a substitute for legal counsel. Discretion united states citizenship and immigration. Pdf prosecutorial discretion and international criminal justice. Ice, like anyother law enforcement agency, has prosecutorial discretion and may exerciseit in the. Immigration and customs enforcement, and was intended to channel limited resources into prioritized pursuit of cases involving criminals and felons. How can i get prosecutorial discretion in immigration.
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