ICE Proceeds with Implementation of Prosecutorial Discretion Policy

November 23, 2011

       The Immigration and Customs Enforcement (ICE) issued two extremely important policy memorandums on June 17, 2011, regarding prosecutorial discretion that should provide some relief to individuals unlawfully residing in the US. On November 17, 2011, ICE issued another memorandum setting forth the steps it is now taking in order to implement the prosecutorial discretion policies.

       Prosecutorial discretion is a decision by a law enforcement officer whether to enforce a law against an individual and to what extent the law should be enforced. When a law enforcement officer decides to grant prosecutorial discretion, they are deciding either to not enforce the law against the individual or to limit the extent to which the law is enforced.

       ICE’s prosecutorial discretion memos recognize the limited resources that ICE maintains for enforcing the laws against immigration violators by establishing guidelines for ICE officers when determining whether to grant prosecutorial discretion to an individual. In determining prosecutorial discretion, “ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

       With these priorities in mind, ICE officers are now instructed to assess the extent to which they wish to apply the immigration laws against an individual who has violated those laws. The memos set forth relevant factors to be considered by ICE officers, including but not limited to the following: Length of residence in US; Circumstances of the person’s arrival to the US, particularly if the individual was a child; Pursuit of a US education; Military service by the person or an immediate relative; Criminal history; Ties and contributions to the community, including family relationships; Ties to the home country and conditions in that country; Person’s age, especially minors and elderly; Health conditions of individual and relatives; Possibilities for relief from removal; and Participation in a criminal, civil, or administrative legal proceeding.

       The factors enumerated in the memos are extremely hopeful as it suggests that ICE understands and appreciates that there are many individuals who have violated the immigration laws, but that it is not necessarily worthwhile for ICE to pursue actions against those individuals. For example, for nearly a decade legislators have been unsuccessfully attempting to pass the DREAM Act, which would grant lawful status to individuals brought to the US as a young child who have pursued an education in the US or military service. The ICE memos strongly suggest that individuals who would benefit from the DREAM Act, if passed, should be granted prosecutorial discretion so that they at least no longer fear deportation to a country they know little about.

       The memo advises ICE officers that they have a broad range of options in determining to what extent prosecutorial discretion should be applied. Some of the considerations for ICE officers are as follows: Whether to issue or cancel a notice of detainer or Notice to Appear; Whether to focus enforcement resources on a particular administrative violation or conduct; Deciding whom to stop, question, arrest, detain, or release; Settling or dismissing legal proceedings; Granting deferred action, parole, or staying a final order of removal; Agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of a removal order; Pursuing an appeal; and Joining in a motion to reopen.

       The policies described in the memos apply to all ICE officers, including the government’s trial attorneys in removal proceedings. Accordingly, individuals who may not have any statutory forms of relief from deportation may now at least seek prosecutorial discretion based on these essentially humanitarian factors. The individual may therefore be able to convince ICE to terminate or administratively close removal proceedings, not to execute a removal order, or some other remedy that would not result in the individual’s deportation.

       ICE’s memo on November 17 sets forth the process that it will take in order to implement its prosecutorial discretion policy. Effective immediately, ICE attorneys nationwide must now review all incoming removal court cases to determine whether prosecutorial discretion should be applied. ICE will conduct a test run of its new review process until January 13, 2012. Beginning December 4, ICE attorneys in the Denver and Baltimore courts only will also conduct a review of all pending removal cases. ICE is conducting a pilot program of the review process in these two immigration courts only, with the goal being implementation in all courts once an evaluation of the program is conducted.

       Until Congress works on fixing the broken immigration system, ICE’s implementation of its prosecutorial discretion policies provide at least a glimpse that the government recognizes the contributions that immigrants have on the community and the futility in attempting to remove all immigration violators. As prosecutorial discretion is entirely guided by the decision of an ICE officer, it is vital that individuals seeking such favorable action effectively communicate their equities through legal counsel intricately familiar with the policies and the laws.