Use of prosecutorial discretion in ICE enforcement
1. What is Prosecutorial Discretion in ICE Enforcement?
Prosecutorial discretion refers to the authority of immigration enforcement agencies, primarily Immigration and Customs Enforcement (ICE), to decide whether and how to enforce immigration laws against individuals. This discretion includes decisions such as:
Whether to initiate removal proceedings.
Whether to prioritize certain cases for deportation.
Whether to grant deferred action or stay removal.
Whether to issue detainers or notices to appear.
ICE’s prosecutorial discretion recognizes the limits of enforcement resources and the need to focus on high-priority cases (e.g., serious criminals, national security threats) while allowing leniency or relief for others (e.g., families, victims, individuals with strong equities).
2. Legal and Policy Framework
Prosecutorial discretion is not explicitly codified in statutes but derives from broad executive authority.
ICE’s own policies and memoranda guide discretion (e.g., 2011 Morton Memo, 2014 Jeh Johnson Memo).
Courts generally defer to ICE’s enforcement priorities unless discretion is abused or exercised in an unconstitutional manner.
Discretionary decisions may not always be judicially reviewable (limited by 8 U.S.C. § 1252(g)).
Key Case Laws on Prosecutorial Discretion in ICE Enforcement
Case 1: Heckler v. Chaney, 470 U.S. 821 (1985)
Facts:
A group petitioned the FDA to take enforcement action. FDA declined.
Issue:
Whether agency refusal to act is reviewable.
Holding:
The Supreme Court held that agency decisions not to prosecute or enforce are presumptively unreviewable.
Significance:
Established broad deference to agency prosecutorial discretion.
Applied analogously to ICE enforcement discretion.
Courts rarely second-guess decisions not to pursue removal.
Case 2: Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)
Facts:
Applicants sought relief based on ICE’s alleged abuse of discretion in deciding not to grant deferred action.
Issue:
Whether prosecutorial discretion decisions can be reviewed.
Holding:
The BIA held prosecutorial discretion is inherently discretionary and not subject to appeal.
Significance:
Confirmed ICE’s authority to grant or deny deferred action without judicial review.
Emphasized discretion is a case-by-case balancing of equities.
Case 3: Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007)
Facts:
Plaintiffs challenged DHS’s enforcement priorities, alleging improper denial of deferred action.
Issue:
Whether DHS’s enforcement discretion is judicially reviewable.
Holding:
The Ninth Circuit held enforcement discretion is presumptively unreviewable, except in cases of constitutional violations or bad faith.
Significance:
Reinforced limits on judicial intervention in ICE enforcement decisions.
Allowed judicial review only when discretion is exercised arbitrarily or with improper motive.
Case 4: Arizona v. United States, 567 U.S. 387 (2012)
Facts:
Arizona enacted strict immigration enforcement laws.
Issue:
Whether federal immigration enforcement priorities preempted state law.
Holding:
The Supreme Court emphasized the federal government’s exclusive authority over immigration enforcement and prosecutorial discretion.
Significance:
Affirmed federal government’s broad discretion in immigration enforcement.
Limited states’ ability to interfere with ICE’s enforcement decisions.
Case 5: Santos v. INS, 589 F.2d 515 (9th Cir. 1978)
Facts:
INS sought to deport an individual but had previously granted deferred action.
Issue:
Whether deferred action creates legal entitlement or limits INS discretion.
Holding:
The court held that deferred action is discretionary and does not create a legal right or estoppel against enforcement.
Significance:
Deferred action is a temporary, revocable exercise of discretion.
ICE retains authority to enforce at any time.
Case 6: Khai v. Holder, 620 F.3d 1015 (9th Cir. 2010)
Facts:
Khai argued ICE abused discretion by detaining and seeking removal despite positive equities.
Issue:
Whether court can review ICE’s decision to detain or remove.
Holding:
Court affirmed that prosecutorial discretion decisions are largely immune from review absent constitutional claims.
Significance:
Confirms limited judicial oversight.
Highlights importance of constitutional protections as exceptions.
Summary of Key Principles
Prosecutorial discretion is a core executive function and enjoys wide deference.
Courts generally cannot compel ICE to act or refrain from acting in immigration enforcement.
Judicial review is limited to claims of constitutional violations, bad faith, or abuse of discretion.
ICE uses discretion to prioritize removal of threats while deferring less dangerous cases.
Deferred action is a temporary, revocable status, not a legal right.
The balance between enforcement and humanitarian concerns is shaped by executive policy and case-by-case discretion.
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