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This morning (despite the pressure that our panel comes right before lunch), I am going to provide a “101” on the role of prosecutorial discretion in immigration law, which is my primary area of research and fundamental to understanding how the immigration system operates. Prosecutorial discretion is a largely invisible tool that enables thousands, if not millions, of unauthorized noncitizens to reside in the United States without fear from deportation. It may be characterized as invisible because prosecutorial discretion decisions are largely connected to no action at all or as some call it, nonenforcement. A favorable exercise of “prosecutorial discretion” refers to a decision by a Department of Homeland Security, or DHS, employee to abstain from enforcing the immigration laws against a person or group.

A grant of immigration prosecutorial discretion does not amount to a formal legal status but rather functions as a tenuous one. There are two or maybe three theories that lie beneath prosecutorial discretion in immigration law. One theory is economic. The agency has limited resources and deporting ten million people is not cost-effective (the agency has the resources to deport less than four percent or 400,000 of the total removable population). Therefore, the agency should target its resources toward its highest priorities such as those who present a risk to national security or a danger to the community. The second theory is humanitarian. There are scores of individuals — young people pursuing higher education, spouses of U.S. military members, single mothers acting as primary breadwinners and caregivers, and migrant workers who left their families to build a life for themselves — who are contributing to the U.S. in meaningful ways and therefore, should be protected from deportation. There is a possible third theory that I might characterize as more political in nature that occurs when the agency chooses to exercise executive power in the wake of congressional inaction or action.


Originally published at 57 How. L. J. 931.