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Prosecutorial Discretion in the Immigration Context

Posted by attorney Carl Shusterman

In Reno v. American-Arab Anti-Discrimination Committee, a majority of the Supreme Court found that the various prudential concerns that prompt deference to the executive branch’s determinations as to whether to prosecute criminal offenses are “greatly magnified in the deportation context,"55 which entails civil (rather than criminal) proceedings. While the reasons cited by the Court for greater deference to exercises of prosecutorial discretion in the immigration context than in other contexts reflect the facts of the case, which arose when certain removable aliens challenged the government’s decision not to exercise prosecutorial discretion in their favor, the Court’s language is broad and arguably can be construed to encompass decisions to favorably exercise such discretion. More recently, in its decision in Arizona v. United States, a majority of the Court arguably similarly affirmed the authority of the executive branch

not to seek the removal of certain aliens, noting that “[a] principal feature of the removal system is the broad discretion entrusted to immigration officials," and that “[r]eturning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission." According to the majority, such exercises of prosecutorial discretion may reflect “immediate human concerns" and the “equities of … individual case[s]," such as whether the alien has children born in the United States or ties to the community, as well as “policy choices that bear on international relations."

In addition to such general affirmations of the executive branch’s prosecutorial discretion in the immigration context, other cases have specifically noted that certain decisions are within the prosecutorial

discretion afforded first to INS and, later, the immigration components of DHS. These decisions include:

∗ whether to parole an alien into the United States;

∗ whether to commence removal proceedings and what charges to lodge against the respondent;

∗ whether to cancel a Notice to Appear or other charging document before jurisdiction vests in an immigration judge;

∗ whether to grant deferred action or extended voluntary departure;

∗ whether to appeal an immigration judge’s decision or order, and whether to file a motion to reopen; and

∗ whether to impose a fine for particular offenses.

The recognition of immigration officers’ prosecutorial discretion in granting deferred action is arguably particularly significant here, because the June 15 memorandum contemplates the grant of deferred action

to aliens who meet certain criteria (e.g., came to the United States under the age of sixteen).

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