Criminal Defense of Immigrants


§ 15.20 6. Prosecutorial Discretion

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OVERVIEW " PROSECUTORIAL DISCRETION Nov. 20, 2014 DHS Memorandum on Prosecutorial Discretion. Replaces all prior memoranda.
John Morton, Director, DHS USCIS, Memorandum on Exercising Prosecutorial Discretion Consistent with the Civil hnmigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (Jun. 17, 2011). This policy applies to applies to a broad range of discretionary enforcement decisions, including but not limited to . . .: deciding to issue or cancel a notice of detainer; deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA); focusing enforcement resources on particular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recognizance, or other conditions; seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court; settling or dismissing a proceeding; granting deferred action, granting parole, or staying a final order ofremoval; agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal; pursuing an appeal; executing a removal order; and responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit. ICE attorneys may exercise prosecutorial discretion in any immigration removal proceeding before EOIR, on referral of the case from EOIR to the Attorney General, or during the pendency of an appeal to the federal courts, including a proceeding proposed or initiated by CBP or USCIS. Factors to Consider When Exercising Prosecutorial Discretion When weighing whether an exercise ofprosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to- the agency's civil immigration enforcement priorities; the person's length of presence in the United States, with particular consideration given to presence while in lawful status; the circumstances ofthe person's arrival in the United States and the manner ofhis or her entry, particularly if the alien came to the United States as a young child; the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States; whether the person, or the person's immediate relative,has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat; the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants; the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud; whether the person poses a national security or public safety concern; the person's ties and contributions to the community, including family relationships; the person's ties to the home country and condition~ in the country; the person's age, with particular consideration given to minors andthe elderly; whether the person has a U.S. citizen or permanent resident spouse, child, or parent; whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; whether the person or the person's spouse is pregnant or nursing; whether the person or the person's spouse suffers from severe mental or physical illness; whether the person's nationality renders removal unlikely; whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident; whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; .and . whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others. This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities. The following positive factors should prompt particular care and consideration: veterans and members ofthe U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the United States since childhood; pregnant or nursing women; victims of domestic violence; trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; and individuals with serious health conditions. The following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys: individuals who pose a clear risk to national security; serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind; known gang members or other individuals who pose a clear danger to public safety; and individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud. Timing While ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding. See Mary Kenney, Legal Action Center, Practice Advisory on Prosecutorial Discretion
GAO on ICE Discretion "ICE does not have a mechanism to ensure the timely dissemination of legal developments to help ensure that officers make decisions in line with the most recent interpretations of immigration law. As a result, ICE officers are at risk of taking actions that do not support operational objectives and making removal decisions that do not reflect the most recent legal developments." GAO, Oct. 15, 2007.
Posts 'Prosecutorial Discretion Toolkit' The purpose of this Toolkit is to help advocates understand various components of prosecutorial discretion - who can benefit, what is the process, and what advocates can do to assist clients both before and after the issuance of the Notice to Appear.