Select Page

Understanding Prosecutorial Discretion in Immigration Law

Submitted to Hispanic Lifestyle from the Immigration Policy Center.

Frustrated by the lack of comprehensive immigration reform, many immigrant advocates, from grassroots community organizers to Members of Congress, have begun calling on President Obama to take action on immigration. They want the President and his Administration to use the power of the executive branch to prevent or defer removals, to revisit current policies and priorities, and to interpret the law as compassionately as possible.

Like all government officials from the local traffic cop to the Attorney General of the United States, immigration officials must make decisions every day about how they exercise their power. It is within the discretion of immigration authorities to determine whom to target for removal. For instance, by prioritizing “criminal aliens” over “non-criminal aliens,” the Department of Homeland Security exercises its authority to enforce the law against some people but not others. These decisions are exercises of prosecutorial discretion.

For those unfamiliar with the idea of prosecutorial discretion—or with the way immigration laws are actually enforced—it can be confusing to identify and understand what is at stake when advocates call for more prosecutorial discretion.

Consequently, the Immigration Policy Center of the American Immigration Council has produced the following brief introduction to the concept of prosecutorial discretion in immigration law and answers the following questions:

What is Prosecutorial Discretion?

When is Prosecutorial Discretion Used in Immigration Enforcement?

Who Exercises Prosecutorial Discretion?

Is Prosecutorial Discretion Always Case by Case?

What Factors Lead to an Exercise of Prosecutorial Discretion?

Is Prosecutorial Discretion a New Idea in Immigration Enforcement?

Is Prosecutorial Discretion the only authority the Executive Branch has to affect the immigration laws?

Do Members of Congress Recognize Prosecutorial Discretion as An Executive Branch Authority?

To view the fact sheet in its entirety see:

Understanding Prosecutorial Discretion in Immigration Law (IPC Fact Check, May, 2011)

To view a list of resources and information on Executive Action see:

Executive Action: A Resource Page


Article Categories