ICE issues additional guidance on 'prosecutorial discretion'

On November 17, 2011, Peter S. Vincent, Principal Legal Advisor at US Immigration and Customs Enforcement (ICE) issued a memorandum that provides additional guidance on conducting a case-by-case review of incoming and pending cases in the Immigration Courts (EOIR). In the memorandum, Mr. Vincent describes the types of cases that are considered “high priorities” (and thus should be “pursued in an accelerated manner before EOIR”), and those cases that are considered “low priority” (and thus deserving of prosecutorial discretion). 

By way of background, ICE had issued a memorandum in June 2011, stating that rather than spending precious time, money, and resources going after, and deporting, everyone, they would start prioritizing cases, and going after people with criminal records and serious immigration violations. People who did not really pose that big of a threat to the US would be put on the “back burner.” Although these people may be subject to removal, ICE would leave them alone in the meantime, and possibly agree not to pursue, or even dismiss their pending removal proceedings.

In the November 17, 2011 memo, ICE attorneys will start reviewing pending and incoming cases and “should decide whether the proceedings before EOIR should continue or whether prosecutorial discretion in the form of administrative closure is appropriate.” If the ICE attorneys believe that a particular case is deserving of prosecutorial discretion, they could move or request the Immigration Judge to “administratively close” or dismiss the proceedings.

The memo lists a number of cases which are considered “enforcement priorities,” meaning that these are the types of cases where ICE will still “go after” the alien, and were prosecutorial discretion would not be warranted: a person who is a suspected terrorist; a person with a conviction for a felony or multiple misdemeanors, immigration fraud, or a misdemeanor involving violence, threats, or assault; a gang member; someone who entered the US illegally or violated the terms of their admission within the last 3 years; persons who had previously been removed; persons who have committed immigration fraud; or persons who otherwise have an “egregious record of immigration violations”.

The memo then lists the types of cases (and people) who may be deserving of “prosecutorial discretion”: a person in good standing in the military, or who was honorably discharged; a child who has been in the US for more than 5 years and is either in school, or has successfully completed high school; a person who came to the US under the age of 16, has been in the US for more than 5 years, has completed high school, and is now pursuing or successfully completed higher education in the US (It would seem that this category may be describing young students who would be eligible under the DREAM ACT, if that proposal ever became law. For now, there is no DREAM ACT, but at least prosecutorial discretion could be available for DREAM ACT type students); a person who is over 65, and has been in the US for more than 10 years; victims of domestic violence; people who have been lawful permanent residents (green card holders) for more than 10 years and have a single, minor conviction for a non-violent offense; someone with a serious mental or physical condition; or someone who has very long-term presence in the US, has an immediate family member who is a citizen, and has established compelling ties and made compelling contributions to the US.

I again want to emphasize that prosecutorial discretion is not an amnesty. If you are not in removal proceedings, then it would not really be a good idea to ask for prosecutorial discretion. This is because prosecutorial discretion is basically an agreement by ICE to leave you alone, and not pursue removal proceedings. But if they are already leaving you alone now, then not much could be gained by rocking the boat. After all, if prosecutorial discretion is denied, then you could be removed. 

However, if you are already in removal proceedings, and you belong to one of the categories that is not a high priority removal case, then I strongly suggest that you seek the advice of a reputable attorney, who can perhaps negotiate with ICE and persuade them that you are deserving a prosecutorial discretion, and have your removal case administratively closed.

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