Falling through the Cracks

How Gaps in ICE's Prosecutorial Discretion Policy Affect Immigrants Without Legal Representation

While the Obama administration’s has expanded use of prosecutorial discretion in immigration cases, the subject of immigrants without legal representation and their ability to access this discretion remains unresolved. In 2011, nearly half of all immigrants in removal proceedings appeared “pro se,” or without legal representation. While immigration attorneys can explain the effect of these policies to their clients, pro se immigrants may be unaware that new policies are even in effect. Immigrant advocates have thus been rightly concerned about whether pro se immigrants in removal proceedings will benefit from Immigration and Customs Enforcement’s (ICE) prosecutorial discretion policies.

This paper lays out what immigration authorities can do to ensure that pro se immigrants understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it.