Inspector General: DHS Can’t Say How Many Illegal Aliens It Has Refused to Prosecute

By Brittany M. Hughes | May 13, 2015 | 3:50pm EDT

( – The Department of Homeland Security (DHS) cannot say how many illegal aliens it has refused to prosecute under President Barack Obama’s prosecutorial discretion directives, according to a report released by the department’s Office of the Inspector General (OIG).

The report, released May 6, states that while DHS does collect some data on its immigration enforcement efforts, the department lacks a collective data-gathering tool to record how often its agents exercise prosecutorial discretion, which allows immigration enforcement agencies to decide when to enforce or ignore the nation’s immigration laws.

The lack of data collection results in major information gaps that could prevent future policy improvements and potentially create a national security risk, the OIG stated.

“DHS uses prosecutorial discretion in deciding to what extent it will enforce immigration laws, including whether to place aliens in or take them out of the removal process. However, the Department does not collect and analyze data on the use of prosecutorial discretion to fully assess its current immigration enforcement activities and to develop future policy,” the report explained. 

“Although the Office of Policy is responsible for developing department-wide policies and programs, DHS has not required this office to gather or use data to assess the effect of prosecutorial discretion on immigration enforcement activities. The Department also does not have a mechanism to continuously monitor its use of prosecutorial discretion and improve future policy,” the OIG continued.  

“As a result, DHS may not be using Government funds as efficiently as possible and may be missing opportunities to strengthen its ability to remove aliens who pose a threat to national security and public safety,” the report stated.

The OIG reported that DHS’s three immigration-related agencies, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS), received a collective $21 billion between Fiscal Years 2013 and 2014. 

The OIG noted that unlike USCIS or CBP, the ICE office does record its use of prosecutorial discretion, reporting 12,757 instances in FY2014. However, the department reports these data may be incomplete or misleading, the OIG added.

“ICE officials noted that field office personnel do not always record their use of prosecutorial discretion because they make these decisions daily and it would be too time consuming to record every occurrence,” stated the report. “ICE officials also reported that prosecutorial discretion may be exercised at various points in the removal process; therefore, multiple instances of the use of prosecutorial discretion may be recorded for the same individual.”

The OIG also said that ICE agents in the field have admitted the agency often grants prosecutorial discretion to illegal aliens without having access to the person’s criminal history in his or her home country, allowing potentially dangerous individuals to stay in the United States.

“As a result, aliens convicted of or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be identified as a DHS enforcement priority,” the report stated.

The DHS also does not keep a consistent record of how many individuals it releases under Obama’s Deferred Action for Childhood Arrivals (DACA), an executive program launched in 2010 that grants temporary amnesty to certain illegal aliens brought to the United States as children.


“As of September 30, 2014, USCIS reported it had approved 632,855 DACA requests and CBP’s Office of Border Patrol reported it had released 650 DACA-eligible individuals,” the OIG reported. However, the report added, “ICE could not provide the number of DACA-eligible individuals it had released.”

Additionally, even though the USCIS and the CPB did collect data on the number of DACA recipients, the OIG stated, “Even though the components collected this information, DHS did not gather and analyze the data to assess its DACA policy.”

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