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An often under-appreciated fact when it comes to the rule of law is that law enforcement often doesn’t throw the book at everybody. 

A police officer may choose to let you off with a warning, instead of ticketing you after pulling you over for a speeding violation. A prosecutor may decide to allow you to complete a “diversion program” (often consisting of community service and/or classes) instead of prosecuting you if this is your first time in legal trouble.

If a prosecutor decides to prosecute you, they may decide not to seek a light sentence if they decide that the circumstances don’t deserve the toughest punishment.

These choices are examples of “prosecutorial discretion” (or “PD”), i.e., instances where the people working in law enforcement use their judgment to decide what kind of punishment to pursue for a violation – or whether to pursue any type of punishment at all. 

PD exists in immigration law enforcement too. 

At Pelton + Balducci, we believe that everyone deserves the chance to live their American Dream. From our New Orleans immigration attorneys, here’s what you need to know about recent updates to enforcement guidelines and prosecutorial discretion in the immigration world.

Prosecutorial Discretion Differences in Political Administrations

We saw the folly, cruelty, and harm that follows when law enforcement is deprived of discretion in the Trump Administration’s child separation policy. In that case, the Justice Department began requiring that all individuals crossing the border illegally be criminally prosecuted. 

Other administrations, including the current one, have allowed prosecutors to exercise their discretion on whether or not to pursue criminal charges against individuals entering the U.S. illegally.

There were important reasons for not prosecuting illegal border crossings indiscriminately.

  • First, criminal prosecution required the separation of children from their parents. This resulted in severe trauma for the children, liability for the government as it lost children through incompetence and indifference, and unnecessarily straining the social service resources that were available. 
  • Further, highly-trained federal prosecutors were tied up criminally prosecuting desperate people looking for a better future, instead of murderers, gangsters, traffickers, and other dangers to society.

More broadly, the Trump Administration’s “zero tolerance” policy was administratively ill-advised, to put it mildly. 

By throwing the book at all immigrants without status in the United States, the Administration clogged up the courts, creating an enormous backlog that strained and impaired the functioning of the immigration courts. 

We currently have a backlog of nearly 2 million cases nationwide. The practical effect has been that cases will often take as long as four years to get through trial, whereas in the past they could be completed in 4 months. 

Further, parents providing for their children and workers contributing to their community had been treated the same as individuals with serious criminal records under the “zero tolerance” immigration policy.

Changes in Enforcement Policy and Prosecutorial Discretion Under President Biden

Reacting to the above circumstances, the Biden Administration began issuing guidance on returning the use of prosecutorial discretion to immigration law enforcement. 

On September 30, 2021, DHS Secretary Alejandro Mayorkas instructed immigration enforcement officers that the government’s limited immigration enforcement resources were to be dedicated to the following types of cases:

  • Threats to National Security: These include noncitizens who engaged in or are suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise pose a danger to national security.
  • Threats to Public Safety: These include noncitizens who have criminal histories that, in the eyes of the government, make them a danger to the community.
  • Threats to Border Security: These include recent unlawful arrivals to the U.S., specifically, those arriving after November 1, 2020.

If a noncitizen did not fall within these three categories, the government would cease enforcement against them. 

Not only did this provide relief to noncitizens and their families who are living peacefully in the U.S., but it also began to ease the strain on an overburdened immigration court system.

The Latest Prosecutorial Discretion Update

However, on June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating Secretary Mayorkas’s September 30, 2021 memorandum, which means that ICE is no longer allowed to “apply or rely on it in any manner.” 

Despite the judgment against the Mayorkas memorandum, prosecutorial discretion contains to be an option in immigration cases. 

The impact of vacating the memorandum is that there is no longer uniform guidance in how PD will be administered by the various ICE offices. Requesting PD has now become more complicated, and an experienced immigration lawyer who knows how to navigate the various ICE offices can help you seek PD from ICE.

Contact a Louisiana Immigration Lawyer at Pelton + Balducci Today

At Pelton + Balducci, we know that immigration status is more than just a set of papers – it opens doors. That’s why we’ve dedicated our lives and careers to guiding future Americans through the immigration process. Contact us today to schedule your consultation.

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