A Comprehensive Guide to Prosecutorial Discretion


 What’s Prosecutorial Discretion? What are the benefits of prosecutorial discretion? How does prosecutorial discretion work? This article answers these questions.

What Does Prosecutorial Discretion Mean?


Prosecutorial discretion ICE was created in 2011 under President Obama’s administration as an alternative to mass removal proceedings (deportation). It was designed as a way for law enforcement officials to prioritize who should be detained and deported first instead of sweeping up anyone who came into contact with them.

Prosecutorial discretion is the power of prosecutors to determine what crimes to pursue and which offenders to charge or not. If a prosecutor does not have discretion, the prosecutor must pursue every case brought to them. However, if a prosecutor does have discretion, they can choose to pursue or not pursue a given case.

This power is exercised by the prosecutor in a number of ways. The prosecutor can decide whether or not to bring charges against an offender, what charges to bring against an offender, and what punishment the offender should receive.

If you face prosecution from customs enforcement, contact an immigration lawyer Austin Texas like Michael G. Murray, P.A.

What is Prosecutorial Discretion and Why is it Important?

Prosecutorial discretion is the use of discretion by a prosecutor in deciding whether to pursue a case or not. It can also refer to the consideration of factors other than the letter of the law when determining whether a crime has been committed.

The United States Supreme Court has ruled that prosecutorial discretion must be applied in a “case-by-case basis”, meaning that the legal proceedings of each case must be evaluated individually before any action is taken.

The reason for this is that prosecutors have enormous discretion over how they enforce laws and what charges they bring against defendants. This makes them uniquely positioned to address problems within our criminal justice system, but without their active participation in reform efforts, many problems will continue unabated.


What is Prosecutorial Discretion in Immigration Law?

Prosecutorial discretion is the power of a prosecutor to decide what cases to pursue and what charges to bring. Since the immigration court system has limited resources, the prosecution has the ability to dismiss removal proceedings in order to reduce the backlog of master calendar hearings.

This discretion is exercised in order to avoid overburdening U.S. courts, or when it seems that some other goal would be served by the prosecution than simply punishing a person for breaking the law.

The U.S. Supreme Court has ruled that prosecutorial discretion is a legal doctrine that can be used by prosecutors, but it does not mean they can arbitrarily exercise their power without accountability or oversight. If you feel you have been unfairly targeted, a naturalization & citizenship lawyer might be able to help protect your rights.

Is There a Prosecutorial Discretion Immigration Work Permit?


Some forms of relief from deportation offer paths to citizenship or legal work in the US. However, prosecutorial discretion in immigration does not offer you a work permit. Nor does it lead to legal immigration status.

It is merely a form of relief from deportation when you are not eligible for any other form of relief from an immigration judge, such as asylum or cancellation of removal.

A person may be eligible for prosecutorial discretion if they have a clean record and have been in the United States for ten years or more. They also need to be either married to a US citizen, have US citizen children, or other mitigating factors.

Even if you do not have these factors in your favor, attorney Michael G. Murray, P.A. may be able to provide legal representation and assistance in your immigration case.

What is Prosecutorial Discretion in ICE?


The United States Immigration and Customs Enforcement (ICE) is the largest investigative arm of the Department of Homeland Security (DHS). ICE has a broad mandate, including the investigation and prevention of terrorism, as well as enforcing federal laws governing trade and travel.

Prosecutorial discretion ICE is a program that allows law enforcement officials to decide which individuals should be arrested, detained, or removed from the United States.

When a person is apprehended by ICE, they have the option to be released with or without a bond while awaiting immigration court.

The decision of whether to detain someone is based on the severity of their crime and if they are considered dangerous or likely to flee. The decision also takes into account if they have close family in the US and whether their arrest would cause any immediate danger for themselves or others.


What are ICE Removal Operations?

Immigration enforcement priorities are put in place to avoid over-working the immigration court system while weighing factual or legal issues regarding criminal conduct.

Generally, ICE prioritizes enforcement and removal operations that are responsible for locating, arresting, detaining, and removing individuals who they think:

  • Present a danger to national security or public safety
  • Enter the country illegally or otherwise undermine border control
  • Violate U.S. customs and laws
  • Commit document fraud
  • Engage in money laundering activities
  • Are fugitives from justice

Immigration enforcement also has the authority to begin removal proceedings for those who were convicted of felonies or serious misdemeanors in their home country or are otherwise without legal status in the United States.

What are Prosecutorial Discretion Examples in Immigration?


Prosecutorial discretion is a legal concept that allows the government to decide enforcement priorities regarding who to prosecute. The idea is for the government to focus on the most serious crimes and not waste time and resources on less important offenses.

There are many examples of prosecutorial discretion in citizenship and immigration services, such as:

  • Prosecuting someone for illegal entry instead of illegal reentry
  • Prosecuting someone for false claim of citizenship instead of unlawful presence
  • Prosecuting someone who overstays their visa instead of those who enter unlawfully

These are a few examples of how prosecutorial discretion is used in immigration court to determine what immigration cases to pursue.


Working with an Immigration Attorney

The decision to hire an immigration attorney is a personal one. Many people feel that they would rather represent themselves and avoid the legal fees.

However, if you are facing an immigration charge, it is important to know your rights and understand the consequences of not having representation.

A reputable immigration attorney like Michael G. Murray, P.A. might be able to provide a solid deportation defense or determine if the courts might de-prioritize your removal based on mitigating factors. Contact the law firm today to schedule an initial consultation.

Coronavirus update: We are safely open for business! USCIS is still accepting new filings for all applications. Our office is offering virtual consultations for new clients so that you don't have to come to our office in person. Call us to schedule your virtual meeting today.
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