The Department of Homeland Security (DHS) has the authority to exercise prosecutorial discretion to assist an illegal immigrant in need. CBP may exercise this discretion by desisting from arresting or detaining someone because of age, medical needs, or other humanitarian considerations. Instead, in Maria’s case, ICE agents from stopped the ambulance and waited in the hospital until Rosa’s release, at which point she was transferred to a detention facility.
The outrage over Rosa’s immigration case is not limited to the activities taken by the government to arrest and detain her but also how the Trump administration has affected an important kind of protection known as “deferred action.”
While the current administration has modified the ability of ICE to apply discretion in important ways, However, guidance from DHS maintains that prosecutorial discretion may still be exercised on a case-by-case basis. Even without this guidance, discretion is unpreventable in a are of the law where the agency has resources to deport about 400,000 which is less than 4 percent of the deportable population. Now under Trump, instead of prioritizing enforcement with a protection for those with humanitarian and other equitable factors, DHS is now moving forward aggressively and arbitrarily against the most helpless.
Going forward, DHS must set priorities and be more specific on the use of prosecutorial discretion. It is incumbent on DHS to make sure that its officers, adjudicators, and attorneys are instructed in how to use this discretion fairly and humanely.
DHS must be held responsible when such prosecutorial discretion is unfairly or incorrectly applied.