ICE Numbers on Prosecutorial Discretion Keep Sliding Downward

Written by on July 30, 2012 in Enforcement, Uncategorized with 2 Comments

Since June 15, the immigration world has largely focused on the impending “deferred action” initiative for individuals who could have qualified for relief under the DREAM Act. Meanwhile, comparatively little attention has been paid to the still ongoing review of more than 300,000 pending removal cases for individuals meriting a favorable exercise of prosecutorial discretion. Although Immigration and Customs Enforcement (ICE) has not released official statistics from the review for nearly two months, figures derived from a recent media account indicate that the agency is now offering to close cases at less than half the rate as when the initiative began.

ICE launched the case-by-case review late last year, nearly six months after Director John Morton issued his now-famous memos on prosecutorial discretion (here and here). To date, according to figures obtained from the Los Angeles Times, agency attorneys have reviewed the files of nearly 360,000 cases and identified 23,000 (or 6.4%) as provisionally eligible for “administrative closure.” (Note: administrative closure results in the removal of a case from an immigration court’s docket, although it may be reactivated at any time upon the government’s request. Unlike deferred action, administrative closure provides no independent basis to obtain a work permit.)

Importantly, however, the latest numbers confirm a trend initially identified in June—namely, that as the case review has progressed, the share of cases found eligible for administrative closure has grown smaller and smaller. (See chart below.) Between the start of the initiative and March 5, for example, nearly 8.0% of all cases were deemed provisionally eligible for closure. The same figure dropped to 6.2% for cases reviewed between March 6 and April 16, and below 6% for cases reviewed between April 17 and May 29. Most recently, for cases reviewed between May 30 and July 20, the share eligible for closure shrunk to only 3.41%—well under half the rate as when the case-by-case review first began.


Period of Review

Total Cases Reviewed

Cases Found Provisionally Eligible for Administrative Closure

Before  March 5




March 6 to April 16




April 17 to May 29




May 30 to July 20








(See this fact sheet for an assessment of the pre-May 30 figures.)

While it is clear that ICE is exercising prosecutorial discretion on an increasingly infrequent basis, the reason remains unclear. One possibility is geographic, i.e., that the review criteria has been applied differently as the process has shifted from immigration courts in Baltimore and Denver to those in New York, San Francisco, and Los Angeles. Another could be the nature of the cases themselves, although there is no evidence to believe that the nature of cases differs significantly from court to court.

Finally, it is also possible that the declining rates of prosecutorial discretion for existing cases suggests that ICE is initiating removal proceedings against fewer low-priority immigrants in the first place—which would be an encouraging sign. But unless ICE provides comprehensive statistics regarding the number of immigrants who receive “Notices to Appear” in immigration court, this possibility—like the others—is nothing more than conjecture.


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  • Kelly

    In regards ti the many ICE cases pending and the expense on not only the goverment but yet the families in which simialar Immigration cases effect. My family is one of many in which my son-in-law is currently being held for deportation. May of 2012 ICE and local law enforcement came in to my daughters home and took my son-in-law into custody due to criminal charges. You see in Feb. 2010 he went to a local sporting good store and purchased bullets. (a very BIG mistake for someone who has a felony record) In May 2011 the police came ,arrested him for that purchase and found a gun in his home. While I’m not trying to justify that he indeed broke the law. I do think that changes need to be made to the fact he is 34 yrs old has lived in Calif. since the age of 4 months old, married to a US citizen in which they share five US citizen children. His family, mothe, father, sisters,brother all are LPR (Lawful Perminate Residence) in which he also shares the statis of LPR.Detained without bail, my daughter has had to start selling assets. First to go was his big rig in which he obtained a class A and has been a owner operater for many of years now. I could go on and on as to the feeling I have as to why THE GOVERMENT NEEDS to FOCUS on CHANGES NEEDED with Immigration LAWS. But for now I’ll just say Thank You for any one who actually took the time to read this. And to the many families going through the same drama let me say GOD BLESS YOU.

    • Hey Kelly, if you see this shoot us an email and let’s see what we can do on the organizing side. As far as we are concerned your son-in-law is still a DREAMer!

      my email is