ICE Data Says Agency Rarely Uses ‘Prosecutorial Discretion’ To Close Cases Against Immigrants

Mexican deportees on an ICE flight from Illinois to Texas in 2010.
Image Associated Press

Immigration and Customs Enforcement (ICE) officers rarely use prosecutorial discretion – the setting of standards for the agency’s officers to follow when it comes to deciding whether to detain and prosecute certain undocumented immigrants – to close cases against immigrants once they’re referred to immigration courts, according to a data project from Syracuse University.  The Transactional Records Access Clearinghouse (TRAC), which files Freedom of Information Act requests to collect ICE data on immigration cases, has released a new analysis showing that less than 7 percent of all cases in the courts were closed in the last year and a half.     

The Immigration Policy Center notes that discretion can be used at any stage of an immigration case, from the apprehension phase – when it comes to stopping, questioning and arresting particular people, focusing resources on certain violations or conduct, or detaining people already in police custody or under supervision – to referring cases to courts to begin deportation proceedings.  In most of the country, it appears that authorities rarely practice such discretion after proceedings are already opened: between October 2012 and March 2014, the group reports, ICE intervened to close only 6.7 percent of cases they’d earlier referred to the courts.  The percentage varied widely by region; in Tucson and Seattle, it was around 30 percent.

Use of prosecutorial discretion – and especially top officials’ setting of prosecutorial standards for agents to follow – has been a hot-button issue in immigration debates.  In August 2012, President Obama extended protections from deportation to many DREAMers this way; Republicans are still crying foul.  On Thursday, as the Obama administration ponders an extension of those protections, 22 Senate Republicans sent a letter to Obama warning against any further action to set standards for prosecutorial discretion by ICE officers, saying “our entire constitutional system is threatened when the Executive Branch suspends the law at its whim”.

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