Strategic Requests for Prosecutorial Discretion

In the civil immigration enforcement context, the term “prosecutorial discretion” applies to a broad range of discretionary enforcement decisions, including but not limited to the following:Background on Prosecutorial Discretion

• 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 condition;
• 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 of removal;
• 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.

General Exercising of Prosecutorial Discretion

After evaluating various DHS memoranda, it is cleat that prosecutorial discretion can be exercised by any branch of DHS. Additionally, it must not always be practiced in the same way or at the same time throughout the course of a case. See the Morton Memo on Prosecutorial Discretion for further discussion. There are a wide array of circumstances under which prosecutorial discretion should be exercised. For example, an officer may decide not to bring charges against someone who has fallen out of status (or has never been in status) who is working in the US if certain criteria apply, as listed later in this article. If, after an arrest, the officer determines that the detained person is not a danger to the public and is not a flight risk, for example, the case may not be pursued. Again, familial relationships, the amount of time in the US and other circumstances related to the specific case may be considered. In these cases, a Notice to Appear, may be cancelled or a motion to terminate may be joined to the motion.

In the case that a person has already been ordered removed, it is possible for ICE to grant a stay of removal.  Another option is for DHS to grant a deferred actio, which amounts to a discretionary remedy that keeps a person in legal limbo, so to speak. Regardless of the way in which prosecutorial discretion is used (i.e., NTA cancellation, deferred action, refraining from filing an NTA) the act itself confers no specific or substantive benefit or right of action to the noncitizen.

Prosecutorial Discretion as it Applies to Authorized ICE Personnel

Prosecutorial discretion in civil immigration enforcement matters is held by the Director and may be exercised, with appropriate supervisory oversight, by the following ICE employees according to their specific responsibilities and authorities:

• Officers, agents, and their respective supervisors within Enforcement and Removal Operations (ERO) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;
• Officers, special agents, and their respective supervisors within Homeland Security Investigations (HIS) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;
• Attorneys and their respective supervisors within the Office of the Principal Legal Advisor (OPLA) who have authority to represent ICE in immigration removal proceedings before the Executive Office for Immigration Review (EOIR); and
• The Director, the Deputy Director, and their senior staff.

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. If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or close a particular case or matter, the attorney should notify the relevant ERO, HSI, CBP, or USCIS charging official about the decision. IN the event there is a dispute between the charging official and the ICE attorney regarding the attorney’s decision to exercise prosecutorial discretion, the ICE Chief Counsel should attempt to resolve the dispute with the local supervisors of the charging official. If local resolution is not possible, the matter should be elevated to the Deputy Director of ICE for resolution.

Factors to Consider When Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to the following:

• 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 of the person’s arrival in the United States and the manner of his 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 conditions in the country;
• The person’s age, with particular consideration given to minors and 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.

That said, there are certain classes of individuals that warrant particular attention. The following factors should prompt particular consideration:

• Veterans and members of the U.S. armed forces;
• Long-term lawful permanent residents;
• Minors and elderly individuals;
• Individuals present in the United States since childhood;
• Pregnant and 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.

In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, 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 of ICE’s Prosecutorial Discretion

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 as possible (or before a case begins) in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding.

In cases where, based upon an officer’s, agent’s, or attorney’s initial examination, an exercise of prosecutorial discretion may be warranted but additional information would assist in reaching a final decision, additional information may be requested from the alien or his or her representative. Such requests should be made in conformity with ethics rules governing communication with represented individuals and should always emphasize that, while ICE may be considering whether to exercise discretion in the case, there is no guarantee that the agency will ultimately exercise discretion favorably. Responsive information from the alien or his or her representative need not take any particular form and can range from a simple letter or email message to a memorandum with supporting attachments.