Once Intended to Reduce Immigration Court Backlog,
Prosecutorial Discretion Closures Continue Unabated

The latest case-by-case Immigration Court records reveal that during the first quarter (October-December 2013) of fiscal year 2014, a total of 2,993 cases were officially closed due to the exercise of prosecutorial discretion (PD). This represents 7.0 percent of all Immigration Court cases closed so far this fiscal year.

While originally announced as a program to clear cases from the accumulated court backlog, PD closures have continued to be employed in the process of handling new Immigration Court cases. In fact, so far this year PD is being used much more frequently than during the first year of the PD program, FY 2012, when such closures accounted for only 4.7 percent of all cases closed. Its use is, however, now running slightly below the pace of last year, FY 2013, when 8.5 percent of immigration closures were handled via PD (see Table 1).

Since the program began in October 2011, five Immigration Courts report that at least 1 out of 5 of their closures cited the exercise of prosecutorial discretion. The Seattle Court led the nation with 29.8 percent PD closures. The Tucson court was in second place with 26.0 percent PD closures, while the Los Angeles Court was third with 23.7 percent. Rounding out the top five were the Omaha Court at 23.1 percent and the Phoenix Court at 20.7 percent.

A number of big-city Immigration Courts recorded much lower uses of prosecutorial discretion. For example, Houston was at 1.7 percent PD closures, New York City 3.7 percent, Chicago 5.0 percent, and Miami 6.3 percent, to list just a few. Note that each of these locations tends to hear those cases involving individuals who are not detained, since in each city there is a separate court specifically intended to handle detainees. Hearing locations for individuals detained by ICE tended to show few if any PD closures.

Low PD closures could occur for a variety of reasons. It is reasonable to assume that standards may vary from one court to the next. However, it could also indicate that in some locations enforcement personnel do a better job screening out cases that would meet the administration's PD standards before they ever reach court. If that is the case, then a high PD court closure rate may be a sign that inadequate review of cases is taking place before officials file an action in court seeking a removal order.

To view a complete list documenting the use of PD in each Immigration Court and hearing location, updated with the latest court data through December 2013, please go to TRAC's Prosecutorial Discretion data tool. As PD has become more routinely employed in handling Immigration Court cases (as opposed to being mainly used for backlog reduction), statistics reported by this tool have been updated to display the cumulative rate of PD closures as a percentage of all closures since October 2011.