Crunching—and Clarifying—the Numbers on Prosecutorial Discretion

Late last year, the Department of Homeland Security (DHS) instructed its attorneys to review matters pending before immigration courts in search of low-priority cases warranting prosecutorial discretion. But of the approximately 300,000 immigrants now in deportation proceedings, how many stand to potentially benefit from the initiative? In recent days, immigrant advocates have fretted the figure could be as low as 1 percent—a fear based on the number of cases that had been officially suspended as of the start of last week. In truth, the actual figure presently appears closer to 10 percent. While the government bears the blame for much of the confusion, it now seems certain that advocates’ initial fears were unwarranted.

The source of the discrepancy can be traced to a congressional hearing last week, when ICE Director John Morton fielded questions from lawmakers regarding of the agency’s ongoing review of pending immigration cases. According to Morton, the initiative has thus far led to “administrative closure” in 1,500 of the approximately 150,000 cases reviewed by government attorneys—a figure that led understandably concerned advocates to fear the government was offering to suspend deportation proceedings in a mere 1 percent of cases. But according to information that surfaced after the hearing, the number of immigrants expected to receive offers of prosecutorial discretion appears to be much higher. According to information sent to members of Congress following the hearing:

  • As of March 5, DHS attorneys had reviewed the cases of more than 165,000 immigrants with pending deportation cases.
  • Of those, the government found more than 13,000 immigrants—or approximately 8 percent—to be eligible for a favorable exercise of prosecutorial discretion based on their lack of criminal record and the presence of positive factors, such as former military service and having U.S. citizen children.
  • Excluding the roughly 23,000 immigrants being held in detention, many of whom have been convicted of crimes, the share of cases found eligible for prosecutorial discretion exceeds 9 percent.

Of course, the revised figures still beg the question why deportation proceedings have been formally suspended in only 1,500 cases if more than 13,000 immigrants have been found eligible for prosecutorial discretion. At least four possible answers exist.

First, any immigrant found potentially eligible for prosecutorial discretion must pass a background check before the government’s offer becomes final. Second, even after passage of the background check, the parties must submit a motion to suspend deportation proceedings and receive approval from an immigration judge. Third, immigrants who are not represented by attorneys may not receive offers of prosecutorial discretion until they appear in person in immigration court. And finally, many immigrants with applications for relief—such as asylum—have reportedly declined offers to suspend proceedings because they would prefer to take their chances before an immigration judge.

In sum, while the number of immigrants who could potentially benefit from prosecutorial discretion may be lower than initially hoped, the true figure remains much higher—and more important—than the number of cases that happen to have already been officially suspended. To prevent similar confusion in the future, DHS would be wise to release statistics in a more regular, and less misleading, fashion.

Photo by ntrung

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  1. While the newly introduced prosecutorial discretion policy certainly has room to improve, it is conceptually well intentioned. With anti-immigrant legislation popping up in states across the nation its important that the federal government continue to push this concept forward. Filling in the gaps and remaining transparent in the future will help to ensure that the progress of this policy be accurately monitored.

  2. Victoria Sethunya says:

    Let us hope that in the implementation of prosecutorial discretion, immigrants are not coerced to accept charges because “their cases are being closed anyway”. There are immigration attorneys who coerce immigrants into accepting alternatives that can harm immigrants in the future. For example, an attorney can suggest that an immigrant should opt for voluntary departure because “they can always apply to come back” without making it clear to the immigrant that accepting that offer means that they are accepting charge against them in immigration courts.

    Is there a possibility that prosecutorial discretion could be persuaded along the same lines?

    A burnt child dreads fire is a stale expression but remains active in my files.

  3. Jeresia Noris says:

    My husband has his master court hearing next week in Orlando, FL and our attorney has already broached the subject of prosecutorial discretion with the ICE prosecutor who seems open to considering. I am praying we will be added to the numbers considered for prosecutorial discretion.

  4. nora guadalajara says:

    an area needing investigation is that of the instructions given ice union members by their union boss. he has directed membership “to avoid prosecutorial discretion” training at all costs. who does he answer to? will he be held accountable? who ensures employees attend mandated training?

  5. What most people don’t understand and what attorneys often fail to inform them is that “administrative closure” does not dispose of your case. At some point in time you will have to return to immigration court or file a motion to terminate to completely dispose of your case. “Administrative closure” just means that ICE is not actively pursuing prosecution of your case.
    This often hinders people of applying for benefits before USCIS because USCIS will refuse to adjudicate certain applications if the person has a pending case with EOIR. A case is still considered pending if it has been “adminstratively closed.”
    In my opinion, if the the DOJ, EOIR, and ICE were serious about this, they would move to terminate the cases, not administratively close them.

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