What Ever Happened to Prosecutorial Discretion?

The term “prosecutorial discretion” refers to the prerogative of law enforcement officials to decline to prosecute. I see it often in my criminal and immigration practice. Sometimes it is a question of enforcement priorities and resources. But other times, it is a question of justice. Every case is different and there are times when applying the letter of the law would lead to an unjust result.

Unfortunately, the concept of prosecutorial discretion seems to be fading away in immigration cases. Consider the case of Pablo Villavicencio as described in today’s New York Times. He was ordered removed back in 2010 but is now married to a U.S. citizen, giving him a basis to apply for permanent residency, which he has. As the government’s own lawyer admits, he could apply for U.S. permanent residency even if he were deported. So why not wait to see how his application plays out?  Why is it necessary to lock him up for two months and counting, taking him away from his wife and two young children?

Fortunately, all indications are that Mr. Villavicencio has some very good lawyers fighting for him and a judge who is not afraid to question the government’s choices.