According to newly released Transactional Records Access Clearinghouse (TRAC) numbers, ICE only used prosecutorial discretion (PD) in 6.7% of immigration cases between October 2012 and March 2014. The numbers once again underscore the deportation practices of an Obama Administration that supports immigration reform, yet keeps deporting those who would qualify for it.
Prosecutorial discretion has nominally been policy since June 2011, when a memo from former ICE director John Morton instructed agents to focus immigration enforcement efforts on serious felons and criminals, while using prosecutorial discretion to close the cases of other, non-priority immigrants. The Supreme court has recognized that the decision of a government agency either not to proceed or not to enforce the law, either by means of a civil or criminal suit, is a decision to be taken at the absolute discretion of the agency.
But in practice, prosecutorial discretion has not been well (or evenly) implemented, as the TRAC numbers show. ICE in San Antonio, Las Vegas, and Newark used PD in only 3-4% of cases, while ICE in Houston, Buffalo, and El Paso used it even less frequently. The Obama Administration to date has deported more than 2 million immigrants, and the New York Times recently estimated that two-thirds either had very minor criminal records or no criminal records at all.