Prosecutorial Discretion Demystified

As many people have heard by now, the Director of Immigration and Customs Enforcement (ICE) issued two new memoranda in June of this year encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement. In a nutshell, the new policy is aimed at moving prosecutorial discretion exercised by immigration enforcement officials away from an ad hoc system to a system that focuses government resources on only pursuing high priority cases—criminal aliens, national security threats, repeat immigration violators, and recent border entrants—and setting aside, closing or not initiating cases that are low priority.

The rationale is that government spending on cases that fall outside the enforcement priorities actually hinders the government’s public safety mission by clogging the immigration court dockets and diverting resources away from high priority individuals.

 

These memoranda announce substantial and, in my opinion, very positive positive policy changes that all immigrants—and their advocates—should be aware of. However, it has also confused many immigrants and citizens alike.

 

First of all, this new policy does not confer any lawful status on any non-citizen. Thus it is a far cry from amnesty. It will merely result in an indefinite reprieve for certain individuals who are already facing deportation but who are a low enforcement priority.

 

Second, there is no affirmative right created by this policy. In other words, someone who is undocumented cannot apply for the exercise of discretion. In fact, if you are undocumented or out of status and you surrender yourself and seek prosecutorial discretion it is very likely you will be placed in removal proceedings where you run a serious risk of being deported. In order to benefit from this policy you must be in removal proceedings already, or be very close to being placed in removal proceedings, for prosecutorial discretion to even apply.

Third, there is no enforceable right to appeal a negative prosecutorial discretion decision, though a good immigration lawyer should be able to utilize an informal appeal process by going up the chain of command within the enforcing agency.

Fourth, depending on the case, there could be a potential benefit linked to the exercise of prosecutorial discretion, such as the availability of employment authorization.

Now, in order to implement these new priorities, on August 18, 2011, the Department of Homeland Security (DHS) announced a review of all pending removal cases in order to identify those cases that reflect a high enforcement priority for DHS. Drum roll please. According to DHS, the highest enforcement priorities, meaning those that should generally be pursued in an accelerated manner involve a noncitizen:

• who is a suspected terrorist or national security risk;
• who has a conviction for—

- a felony or multiple misdemeanors,
illegal entry, re-entry, or immigration fraud, or
a misdemeanor violation involving—
- violence, threats, or assault,
- sexual abuse or exploitation,
- driving under the influence of alcohol or drugs,
- flight from the scene of an accident,
- drug distribution or trafficking, or
- other significant threat to public safety;

who is a gang member, human rights violator, or other clear threat to public safety;

who entered the country illegally or violated the terms of their admission with the last 3 years;

who has previously been removed from the country;

who has been found by an immigration officer or immigration judge to have committed immigration fraud; or

who otherwise has an egregious record of immigration violations.

In contrast, the lowest priority cases—those that should be carefully considered for prosecutorial discretion on a case-by-case basis, involve a noncitizen:

who is a member in good standing of the U.S. military, honorably discharged veteran, or the spouse or child of such member or veteran;

who is a child, has been in the U.S. for more than 5 years, and is either in school or has successfully completed high school;

who came to the U.S. under the age of 16, has been in the U.S. for more than 5 years, has completed high school, and is now pursuing or has successfully completed higher education in the U.S. [yes, this is targeting Dream Act kids]

who is over the age of 65 and has been present in the U.S. for more than 10 years;

who is a victim of domestic violence in the U.S., human trafficking to the U.S.; or of any other serious crime in the U.S. [this is a particularly big deal];

who has been a lawful permanent resident for 10 years or more and has a single, minor conviction for a non-violent offense;

who suffers from a serious mental or physical condition that would require significant mental or detention resources; or

who has a very long-term presence in the U.S., has an immediate family member who is a U.S. citizen, and has established compelling ties and made compelling contributions to the U.S.

In addition to these enforcement priorities, one of the big two prosecutorial discretion memos that came out over the summer makes clear that it is generally against ICE policy to initiate removal proceedings against victims or witnesses to a crime, or to "remove individuals in the midst of a legitimate effort to protect their civil rights or civil liberties."  The language used here is expansive and is designed to protect those involved in labor, housing or similar disputes that are being fought outside of court.  This will hopfeully go a long way to removing the fear of retaliation and removal that noncitizens face when deciding whether or not to speak up and defend their rights.

Noncitizens who are in removal proceedings or who are worried they are about to be placed in removal proceedings should talk with their immigration lawyer about the possibility of prosecutorial discretion, among other options. Often, it will be a last resort, but it may still be better than the alternative—if the alternative is deportation.