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How did prosecutorial discretion policies differ under Obama vs. Trump for immigration enforcement?
Executive summary
Obama-era guidance prioritized using prosecutorial discretion to limit interior removals by focusing resources on recent entrants and those who posed public-safety or national-security threats, producing large reductions in interior removals (from about 224,000 in FY2011 to about 65,000 in FY2016) and routine use of case closures in immigration court (roughly 2,400 closures/month in early 2016) [1] [2]. The Trump administration rescinded those priority-based limits and issued memos directing that prosecutorial discretion “shall not be exercised in a manner that exempts or excludes a specified class or category of [noncitizens],” effectively removing class-based de‑prioritization and expanding frontline officers’ authority to pursue removal for virtually any removable person [3] [4].
1. Obama: discretion framed as individual, priority‑based reprieve
The Obama administration developed memos (Morton, Johnson and related guidance) instructing DHS components to set enforcement priorities and to exercise prosecutorial discretion based on factors such as criminal history, length of residence, family ties, military service, humanitarian considerations, and youth; officials promoted closing or suspending cases for non‑serious offenders so limited enforcement resources could focus on threats to public safety and recent entrants [5] [4] [6]. Advocates and some agency analyses credited those policies with sharply reducing interior removals and with regular use of immigration‑court case closures — TRAC data showed an average of roughly 2,400 PD‑style case closures per month from February–June 2016 [1] [2].
2. Trump: remove categorical shields, broaden enforcement discretion to frontline officers
By contrast, President Trump’s executive order and the implementing DHS memo repealed the Obama priority framework and stated that prosecutorial discretion should not be used to create exempt classes; the effect was to instruct DHS personnel to “faithfully execute” immigration law against all removable individuals and to empower officers to apprehend, detain, and initiate removal proceedings broadly rather than routinely closing cases for low‑level or long‑resident individuals [3] [1]. Multiple legal and policy commentators described this shift as a move from a prioritization ethos to “maximum enforcement,” with prosecutorial discretion curtailed or “all but dead” as an operational tool [7] [8].
3. How the instructions differed in practice: courtroom and ICE attorney roles
Under Obama, ICE attorneys were encouraged to seek dismissals or indefinite suspensions for people who were not serious criminals or national‑security threats, and ICE maintained processes (including inboxes) to accept PD requests from counsel — practices that produced measurable case closures [6] [2]. Under Trump, internal memos reversed those routines: ICE attorneys were instructed that PD is limited, that they need not process prior PD request channels, and that prosecutorial discretion is not an entitlement, signaling narrower, case‑by‑case — and more restricted — use [6] [8].
4. Quantitative signals and operational consequences
Researchers and advocates point to sharp changes in enforcement outcomes: the Obama years saw a significant decline in interior removals and active use of case closures; the early Trump period saw a dropoff in PD use and an uptick in deportation orders and fuller dockets — immigration judges issued more removal orders per month in Trump’s first months compared with the same months in 2016, and TRAC documented PD closures averaging ~2,400/month in early 2016 that largely ceased [1] [2]. Analysts argue these changes reflect differences in stated priorities and in the practical willingness of frontline staff to exercise leniency [1] [2].
5. Competing perspectives and limitations in the record
Supporters of Obama‑era discretion presented it as humane prioritization that used scarce resources to protect public safety [4] [5], while critics (and some legal scholars) noted the approach was uneven, legally vulnerable, and did not eliminate large‑scale removals [7]. Proponents of Trump’s approach argued that stricter enforcement implements statutory obligations and closes perceived loopholes; opponents warned the policy removed individualized assessments and widened exposure to enforcement [3] [7]. Available sources do not provide a comprehensive, matched causal analysis attributing all removal‑rate changes solely to these memos — other factors (funding, operations, litigation, court backlogs) also matter, and those interacting factors are not fully detailed in the current set of sources (not found in current reporting).
6. What to watch next: policy, litigation, and administration changes
Subsequent administrations (and courts) can restore or rewrite discretion guidance; Biden guidance has been described as largely restoring Obama‑style considerations [4] [7]. Legal challenges (for example, around DACA and other programs) continue to shape how durable any administration’s prosecutorial‑discretion approach will be [7]. Observers should track new DHS memos, ICE prosecutorial‑practice instructions, and court data on PD case closures and removal orders to see whether policy shifts translate into measurable changes in enforcement outcomes [4] [2].