Prosecutorial discretion refers to the decision made by employees of the Department of Homeland Security (DHS) about whether and to what extent immigration laws should be exercised against a person or group of persons. When DHS chooses to not pursue arrest or detention of an undocumented mother living in the United States for many years and serving as a primary breadwinner to her family, it is said to be exercising discretion favorably. Prosecutorial discretion has existed for decades but was surfaced as a popular tool only in recent years with the advent of several memoranda published by previous DHS leadership and also the rollout of a program called Deferred Action for Childhood Arrivals (DACA), which enables qualifying individuals who entered the United States as children to seek protection temporarily through a prosecutorial discretion flavor called “deferred action.”
Another significant policy published during the last administration was a memo by former DHS Secretary Jeh Johnson titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” which both outlined priorities for removal and also indicated cases where a favorable exercise of prosecutorial discretion is warranted. Some of the positive factors identified in the Johnson memo included: “length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.” Recent enforcement policies by DHS purport to retain DACA, but also rescind the Johnson guidance and expand the pool of individuals who may be targeted for immigration enforcement.
Thanks to the transparency of programs like DACA during the previous administration and groundbreaking work conducted years earlier by Leon Wildes, prosecutorial discretion in immigration law is now better understood by policymakers and the public. What remains opaque is the tracking of prosecutorial discretion and specific data on the case types and outcomes within the three DHS units with authority to exercise prosecutorial discretion: United States Citizenship and Immigration Services (USCIS); Customs and Border Protection (CBP); and Immigration and Customs Enforcement (ICE). For nearly one decade, I have used the Freedom of Information Act (FOIA) to obtain information about prosecutorial discretion cases. My FOIA adventures through 2015 are detailed in my book while the home for most of these related requests and data sets rests here. A more recent FOIA request and data set from USCIS on deferred action cases (outside of DACA) can be found here.
Building upon this work and what follows is my latest FOIA adventure with ICE. On October 14, 2015, I filed a FOIA request to ICE seeking records of individuals processed for prosecutorial discretion pursuant to the now rescinded Johnson Memo. Specifically, the FOIA requested the following information for each individual processed under this memo:
- Type of discretionary decision (i.e., deferred action, stay of removal, decision to release)
- Country of birth or citizenship
- Stage of enforcement at which prosecutorial discretion was processed (i.e., before an NTA was filed, before arrest, etc.)
- Reasons for a grant or denial
- Whether individual was an enforcement priority and if yes, whether individual met one of the exception contained in the above memo
- Whether individual had counsel
- Whether individual made a request affirmatively or if the request was initiated by ICE
- Unit/officer responsible for processing request
- Whether or not individual has family members in the United States
- Whether or not the individual was or is detained
- Length of presence in the United States
On November 30, 2015, ICE provided a final response that included a lengthy response in the form of an excel work book. The data set identifies more than 40,000 instances during which prosecutorial discretion was considered based on a snapshot of active cases. The data set is a treasure trove and can be found here: ERO-LESA Statistical Tracking Unit. I hope to analyze the data in more detail at a future point, but want to make it available now should it be helpful to practitioners and policymakers. The data set includes information about the stage at which this discretion was considered and whether or not the individual was detained or released. While the initial response from ICE produced several pages of data, it excluded several of the data points identified in my original request.
On January 28, 2016, I filed an appeal to ICE indicating that several of the data points requested were not included in the original response. On March 2, 2016, ICE accepted my appeal and remanded my request so that ICE could conduct a search for the data points not included in the earlier response. Of note, this is the first experience I had where ICE accepted my appeal administratively and remanded my FOIA request.
More than one year later, on May 10, 2017, and following follow-up inquiries by email, ICE provided a response to the appeal. ICE shared no additional data but provided a single excel sheet to summarize the data provided earlier and also to explain why certain information is unavailable. As has been a past experience and should the search be complete, ICE does not appear to maintain within its database several factors relating to prosecutorial discretion:
- Reasons for grant and denial
- Whether the individual was represented by counsel
- Whether the individual made a request affirmatively or if ICE initiated a request
- Unit/officer responsible for processing the request
- Whether the individual has family members in the United States
- Length of presence in the United States
My written requests and appeals to ICE and the excel sheet that accompanied final letter on remand can be found at: FOIA Submissions and Responses. This latest FOIA adventure shows that the transparency challenges of prosecutorial discretion cases at ICE remain. Important to the ongoing dialogue about immigration enforcement policies and the role of discretion in a new administration is how information is being captured by the agency if at all.
Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law: University Park. Her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases is now out in paperback.