How do DHS referral policies and DOJ prosecutorial guidelines influence whether an individual is criminally charged or placed in civil removal proceedings?
Executive summary
DHS referral policies—formal guidance that ranks enforcement priorities and tells front‑line officers when to refer individuals into immigration court—largely determine who is routed into civil removal proceedings, while DOJ prosecutorial guidelines steer which offenses federal prosecutors will pursue as crimes rather than leave to civil immigration adjudication; when the two align, individuals are far more likely to face criminal charges, and when they diverge, many cases remain in civil channels or are deferred [1][2]. The agencies’ coordination, information‑sharing rules, and resource allocations create practical bottlenecks and incentives that tip dozens of discretionary decisions toward criminalization or civil handling long before any court weighs a case [2][3].
1. DHS’s referral rules set the default pathway into immigration court
DHS issues department‑wide enforcement priorities and concrete referral guidance that tell agents across CBP, ICE, and USCIS which cases to prioritize for Notices to Appear (NTAs) and detention resources, meaning that many low‑priority noncitizens will not be referred into removal proceedings at all under current guidance [1][4]. ICE’s Office of the Principal Legal Advisor (OPLA) then gets guidance—like the Doyle memo—about how to exercise prosecutorial discretion in immigration court, including when to waive government appearance or not pursue removal, which practically reduces the number of cases litigated to judgment [3][5].
2. DOJ charging guidance decides whether conduct becomes a federal crime
Separately, DOJ internal prosecutorial memos dictate which criminal statutes U.S. Attorneys should charge; the policy of prioritizing the “most serious, readily provable offenses” or prosecuting immigration offenses presented by law enforcement channels increases the likelihood that immigration‑related conduct will become criminal if DOJ elevates enforcement priorities to charge broadly [2]. Changes at DOJ that re‑emphasize charging serious offenses or mandate disclosure of noncitizen information to DHS create a feedback loop: referrals from DHS can prompt DOJ to file criminal charges, and DOJ’s stated priorities incentivize more aggressive referrals by law enforcement partners [2][6].
3. Information sharing and cross‑agency authority reshape discretion into enforcement
Recent directives requiring agencies like the FBI, DEA, ATF, USMS, and BOP to review and disclose files about noncitizens to DHS, and DHS authorizing DOJ personnel to act with immigration enforcement powers, blur the line between civil and criminal tracks by converting investigative leads into deportation or prosecution referrals—making discretion at the field level dependent on interagency operability as much as statute [2][6]. Those procedural linkages increase the raw flow of cases from administrative matters into criminal prosecution when DOJ signals a willingness to take them [2].
4. Practical effects: court non‑appearances, resource limits, and shifting burdens
OPLA guidance authorizes Chief Counsel to waive government appearances in many non‑detained immigration hearings—practical triage that can result in cases being terminated or proceeding in absentia when DHS deems them low priority—while DOJ charging surges can produce opposite pressure to pursue criminal cases that remove civil adjudicatory options [7][3]. EOIR guidance and memos instruct adjudicators to consider DHS priorities, but changes in DOJ or EOIR policy can rescind that deference, producing uneven treatment across courts and backlogs that further influence whether cases are litigated criminally or handled administratively [8][9].
5. Competing agendas and critiques shape outcomes
Advocates and legal groups frame DHS prosecutorial discretion as a tool to focus limited resources on threats to national security and public safety, while critics warn that expansive information‑sharing and DOJ charging directives risk criminalizing immigration status and undermining civil safeguards; watchdogs have also criticized DOJ for not policing potential abuses by enforcement agents, a concern that colors debates over when a referral should trigger prosecution versus civil removal [4][10]. Policy reversals or new memos—whether to centralize prosecution of “most serious” offenses or to expand DHS discretion—reflect political priorities that materially change the chances an individual faces jail time or only immigration court [2][1].
Conclusion: discretion plus coordination equals outcome
Ultimately, whether a person is criminally charged or placed in civil removal hinges less on a single statute than on a chain of discretionary decisions: DHS referral policies set the gate to civil court, OPLA and field guidance determine who the government will prosecute civilly, and DOJ prosecutorial guidelines and interagency data flows decide if the case will jump to criminal court; shifts in memos, resource allocations, or interagency authority can thus move large numbers of people from administrative removal to federal prosecution [1][3][2]. Reporting limits in the available sources prevent a precise numeric estimate of how many individual cases follow one path or the other, but the documented memos and directives make clear that policy design and agency coordination are the decisive levers [2][3].