Executive Action and Prosecutorial Discretion: A Resource Page

On June 20, 2014, President Obama stated “I’m beginning a new effort to fix as much of our immigration system as I can on my own, without Congress.” Yet it is still unclear when and what executive actions President Obama will take. Will his immigration legacy ultimately be remembered as an enforcement-driven enterprise, or one that uses the full force of executive branch authority to improve our badly broken system? The following resources discuss how the Administration can and should use executive authority and prosecutorial discretion to prioritize DHS's enforcement efforts on removing persons who are most dangerous to the country.

Background on Executive Action and Prosecutorial Discretion:

• Executive Grants of Temporary Immigration Relief, 1956-Present (October 2014)
  • When Reagan and GHW Bush took bold executive action on immigration (October 2014)
• The President’s Discretion, Immigration Enforcement, and the Rule of Law (August 2014)
• Economic Benefits of Granting Deferred Action to Unauthorized Immigrants Brought to U.S. as Youth (June 2012)
• Read a basic fact sheet on Prosecutorial Discretion (Updated June 2011)
• Read The Morton Memo and Prosecutorial Discretion: An Overview (July 2011)
• Read a statement on why President Obama should use executive power (April 2011)
• Read a Statistical Analysis of Prosecutorial Discretion (June 2012)

Legal Experts Weigh In:

• 136 Leading Experts on Immigration Law Agree: President Has Legal Authority to Expand Relief to Immigrants (September 2014)
• Read the letter law professors have sent to President Obama here (September 2014)
• Immigration Lawyers Clarify What DHS’s Announcement on Prosecutorial Discretion IS and IS NOT (August 2011)
• Legal Experts Comments on Recent ICE Memo on Prosecutorial Discretion (July, 2011)
• Legal Experts Weigh in on Executive Branch Authority (May 2011)
• Read a letter to DHS Secretary Janet Napolitano urging a robust policy on prosecutorial discretion as well as a prioritization of enforcement resources (March 2011)
• Read this Practice Advisory on how attorneys can advocate for their clients based on Morton's June 17th prosecutorial discretion memo

Previous Memos on Prosecutorial Discretion:

• Read an ICE Memo outlining when and how ICE officials should use prosecutorial discretion during immigration cases (June, 2011)
• Read another ICE Memo guiding ICE officials on prosecutorial discretion in cases of victims of crimes, witnesses to crime and individuals pursuing legitimate civil rights complaints (June, 2011)

DHS Review of Immigration Cases:

• Crunching—and Clarifying—the Numbers on Prosecutorial Discretion (March 2012)
• DHS Begins Review of Deportation Cases, Issues Awaited Prosecutorial Discretion Guidelines(November 2012)
• Prosecutorial Discretion Survey Demonstrates Need for More Training, Consistency Across ICE Field Offices (November 2011)
• Some Hopeful, Early Signs That Prosecutorial Discretion Is Being Exercised (August 2011)

Consequences of Eliminating Discretion:

• Dissecting the HALT Act: The Impact of Eliminating Discretion from Our Immigration System (July, 2011)
• Read Expert's comments on How the HALT Act Attacks the Last Safety Valves in our Immigration System (July 25, 2011)

Additional Background:

• Read about DHS's recent announcement to put existing guidelines in place across the agency to ensure that its enforcement priorities are focused on high priority immigration cases  (August 18, 2011)
• Read about how DHS's prosecutorial discretion guidelines may provide temporary relief to gay and lesbian bi-national couples (August 19, 2011)
• Read Second Annual DHS Progress Report : An Analysis of Immigration Policy in the Second Year of the Obama Administration (April 2011)
• Read the First DHS Progress Report (March 2010)

Relevant Blog Posts:

• Posts on Prosecutorial Discretion