1. Illegal immigration is either a misdemeanor or a felony in USA (depends on specifics of what an individual did).

  2. Under ordinary circumstances, if a resident would commit a felony or even a misdemeanor (petty theft, prostitution, drunk&disorderly) they are more likely than not going to be arrested, and most assuredly prosecuted.

  3. Despite that, illegal immigrants are very rarely arrested and prosecuted even when LEOs know who/where they are (e.g., a guest of Administration during President's speech; during a pro-illegal-immigration rallies).

As such:

  1. Was there ever a legal challenge (either against non-illegal-immigration arrest/prosecution; OR against lack of illegal-immigration-related ones) that was specifically based around "equal protection under the law" clause of the Constitution? If so, what is the current status of such a challenge as far as how valid the legal theory is?

  2. Based on #1, do any of the illegal immigration related bills in US Congress take into account the possibility of (or current status of if #1 answer is "yes") such challenges?

  • @user1873 - are you saying equal protection can not be applicable to comparing different felonies/misdemenors?
    – user4012
    Commented Oct 30, 2013 at 10:49
  • reading comprehension error on my part. You are asking if arrest/prosecution records show a citizen/illegal bias. You are not asking if deportation or similar laws disproportionately affect non-citizens (which I would hope they do). I believe that Los Angeles had a police chief who refused to impound illegals vehicles for driving without a license/registration tags, because illegals were disproportionately affected by the law. I think I also read CA recently passed a law to give illegals driving licenses.
    – user1873
    Commented Oct 31, 2013 at 5:24
  • 2
    Overstaying a visa is neither a misdemeanor nor a felony; it is a civil violation.
    – phoog
    Commented Feb 14, 2017 at 7:13

1 Answer 1


As far as my research has been able to determine, there has never been a challenge to immigration enforcement based on equal protection. The logic for this is fairly simple - such a challenge would require the showing of unequal enforcement, not lack of enforcement. Prosecutorial Discretion is a well-established principle of the legal system, and has been shown to be allowable many times.

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law.

It would appear that there have been no substantial challenges on other grounds either.

The Congressional Research Service paper Discretion in Immigration Enforcement: legal Issues looked into the issue at length. Part of the summary reads:

Particular exercises of discretion could potentially be checked by the Constitution, statute, or agency directives. Selective prosecution, or prosecution based on race, religion, or the exercise of constitutional rights, is prohibited, although aliens generally cannot assert selective prosecution as a defense to removal. A policy of non-enforcement that amounts to an abdication of an agency’s statutory responsibilities could potentially be said to violate the Take Care Clause. However, standing to challenge alleged violations of the Take Care Clause may be limited, and no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care Clause.

  • Hmm... "prosecution based on race" - given that the courts recognized that you can assign discrimination based merely on racial outcomes, wouldn't the demographics of illegal immigration cause this specific avenue be open to challenge? +1 so far but will wait if someone provides more legislation details before accepting
    – user4012
    Commented Oct 31, 2013 at 17:40
  • 1
    That criterion was in fact used to challenge the Arizona immigration laws. But to challenge on non-enforcement you would have to show that police were deciding to prosecute or not based on race. As far as a know no such challenge has ever been made. Commented Oct 31, 2013 at 17:43
  • No, I was referring specifically to rulings where disparity of outcome was considered DESPITE not having any evidence of active discriminatory practice/decisions.
    – user4012
    Commented Oct 31, 2013 at 19:45
  • I do not believe there are any such challenges. Commented Nov 1, 2013 at 14:21

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