Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System

By Hiroshi Motomura

Discretion takes many forms throughout the immigration enforcement process. Every removal of a noncitizen from the United States, for example, reflects a series of complex choices which reflect discretion.

To understand the role of discretion fully, however, we need to examine the entire range of opportunities to exercise discretion in immigration enforcement and the cast of decision makers who make discretionary decisions, such as members of Congress who enact laws, Department of Homeland Security (DHS) officers who make arrests, Immigration and Customs Enforcement (ICE) trial attorneys who represent the government in removal proceedings, and immigration judges who preside over those proceedings.

This Special Report traces the role of discretion throughout the immigration enforcement process. Understanding these roles is important not only in individual cases, but also in how policymakers write regulations and draft laws. Knowing how the enforcement system anticipates and incorporates discretion is key to understanding how our immigration laws work.