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Understanding Prosecutorial Discretion in Immigration Law

Denver, Colorado. Immigration lawyer Denver Colorado explains key factors regarding Prosecutorial Discretion.

On August 18, 2011. President Obama, through the Secretary of Homeland Security Janet Napolitano, made an announcement that could have a major impact on immigration policy and the lives of millions of immigrants and their family members in the United States. The White House announced that it would use its discretion (called “prosecutorial discretion”) to review the 300,000 cases currently in removal (deportation) proceedings. In an attempt to clear the seriously backlogged immigration court dockets and to better focus resources on high priority cases, all low priority cases may be administratively closed following review. In short, prosecutorial discretion is about exercising good judgment. We have yet to see exactly when and how this plan will take effect.

What is prosecutorial discretion?
Prosecutorial discretion is the authority of a law enforcement agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.

In the immigration context, it is the authority of various immigration officials from CIS and ICE, including Office of Chief Counsel (if the person is in removal proceedings) and Enforcement and Removal Operations (ERO) if the person has a final order of removal, to choose whether or not to pursue the removal of an alien from the U.S. Simply put, it is the authority of immigration officials to choose not to pursue the full extent of enforcement of the U.S. immigration laws.

What is the standard for prosecutorial discretion?
In the immigration context, the standard for prosecutorial discretion is for ICE, USCIS, and DHS to “pursu[e] those cases that meet ICE’s priority for federal immigration enforcement generally.”

ICE’s priorities for enforcement are those aliens who pose a significant threat to national security, border security, public safety, and the integrity of the immigration system. ICE’s resources are limited. It is therefore essential for it to have such priorities for enforcement. It simply makes more sense to use those finite resources wisely, in a way that best promotes the safety and well being of our country.

What is the history behind prosecutorial discretion?
Prosecutorial discretion is nothing new. It is a basic principle of law enforcement generally, decided when and how to enforce the law.

The general authority for the exercise of prosecutorial discretion originated in 2000, under then Comissioner of INS Doris Meissner, who issued a memo explaining that immigration agents and officers have the authority to exercise prosecutorial discretion, and that they should consider exercising it as early as possible in deserving cases. In fact, it emphasized that INS officers were “not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process.”

Prosecutorial discretion has recently become a hot topic for public discussion once again.

On June 17, 2011, John Morton, the current ICE Director, issued a new memorandum, reiterating the principles of the Meissner memo. The Morton memo served to reinforce the importance of focusing ICE’s limited resources on the agency’s enforcement priorities, and to clarify which officers and agents have prosecutorial discretion authority, and what factors they should consider in doing so.

The most important change in policy under the Morton memo, is that the standard for exercising prosecutorial discretion is where it meets ICE’s priorities of national security, border security, public safety, and the integrity of the immigration system. This is good news for immigrant advocates, as this is an easier standard to satisfy (previously, the standard was where discretion served a “substantial federal interest.”

On the same day, Director Morton issued a second memo, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs.” The purpose of this second memo was to ensure that victims were made a priority in this process. “Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”

One month later, on August 18, 2011, DHS announced that it planned to create an inter-agency committee to review all 300,000 cases in removal proceedings. The goal of the team is to identify low-priority removal cases, and to accelerate high-priority cases. The questions that remain are when and how DHS will create the team, and what form a favorable exercise of prosecutorial will take in any given case.

When can immigration officials exercise prosecutorial discretion?
Prosecutorial discretion may be exercised at any time, though it is preferable to pursue it at as early a stage as possible, so as to preserve limited resources.

What factors do immigration officials consider?
The Morton memo enumerated nineteen factors that immigration officials should consider when deciding whether to exercise prosecutorial discretion, but emphasized that officials should consider all relevant factors. “Decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”

The list of enumerated discretionary factors “is not exhaustive, and no one factor is determinative.”
1. Enforcement priorities
2. Length of presence, especially lawful
3. Circumstances of arrival, manner of entry, especially if entered as young child
4. Pursuit of education, particularly U.S. high school graduates, those pursuing higher education
5. Armed forces service – service by alien or alien’s family members, especially combat
6. Criminal history
7. Immigration history, especially violations
8. National security, public safety concerns
9. Ties and contributions to family, community in the U.S.
10. Ties to and conditions of home country
11. Age, especially minors and the elderly
12. USC spouse, child, parent
13. Primary caretaker of a person in the U.S. with a serious illness or disability
14. Pregnant and nursing mothers (alien or spouse)
15. Severe mental or physical illness, including both alien or spouse
16. Likelihood of removal due to nationality
17. Likelihood of grant of status or relief from removal as relative of USC or LPR
18. Likelihood of grant of status or relief from removal as asylee, VAWA, T, U
19. Cooperation with federal, state, or local law enforcement

According to the Morton memo, certain aliens warrant particular care and consideration:
- Veterans and members of the U.S. armed forces
- Long-time LPRs
- Minors and the elderly
- Individuals who have been present since childhood
- Pregnant and nursing mothers
- Victims of domestic violence, trafficking, serious crimes (VAWA, T, U)
- Individuals with a serious mental or physical disability
- Individuals with a serious health condition

Furthermore, certain negative factors also warrant particular care and consideration:
- Clear risk to national security
- Serious felons, repeat offenders, lengthy criminal record
- Gang members
- Serious risk to public safety
- Egregious immigration violations

What form could a favorable exercise of discretion take?
There are a variety of forms that a favorable exercise of prosecutorial discretion may take, including cancellation of a Notice to Appear, dismissal or termination of proceedings, a grant of deferred action or stay of removal. Certain cases may be administratively closed, which may enable the alien to apply for employment authorization.

For further information, please contact:
The Heise Law Office,
Immigration Lawyer in Denver Colorado.
Phone: (303) 495-2013
Fax: (303) 325-3249
1547 Gaylord St., Denver, CO 80206  

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  • Name: Robert Key


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