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Immigration Authorities Must Exercise Discretion

Immigration and Customs Enforcement (ICE) Director John Morton recently released a guidance memo to ICE personnel regarding the apprehension, detention and deportation of aliens.

The June 17, 2011 memorandum reminds them to regularly exercise “prosecutorial discretion” in order to prioritize the use of the agency’s limited resources, such as personnel, detention space, and removal assets, and to ensure that the aliens it removes reflect its enforcement priorities.

Prosecutorial discretion refers to a law enforcement agency’s authority to decide to what degree to enforce the law against a particular individual. If discretion is favorably exercised, ICE in effect decides not to exercise the full scope of enforcement authority that is available to it.

The guidance builds on ICE’s March 2, 2011 memo which placed highest priority to aliens that are national security or public safety risks. Recent illegal entrants and fugitives or those who obstruct immigration controls are given second and third priority, respectively.

The exercise of prosecutorial discretion can take many forms, such as the decision whether to issue or cancel a notice of detainer, or whether to issue, reissue, serve, file or cancel a deportation notice. Discretion may be exercised in deciding whom to stop, question or arrest for an administrative violation; settling or dismissing a proceeding; or granting deferred action or parole or staying a final order of removal.

ICE officers, agents and attorneys are required to consider all relevant factors, including the person’s length of presence in the U.S. particularly while in lawful status; circumstances of arrival in the U.S. and manner of entry; pursuit of education in the U.S.; service by the person or an immediate relative in the U.S. military; criminal and immigration history; ties and contributions to the community; ties to the home country and conditions in the country; and eligibility for relief from removal, such as asylum, being a victim of domestic violence or human trafficking or a relative of a U.S. citizen or lawful permanent resident (LPR).

“Prompt particular care and consideration” is called for when a case involves veterans and members of the U.S. army, long-time LPRs, minors, elderly individuals, pregnant or nursing women, individuals present in the U.S. since childhood and those with serious mental or physical disabilities or health conditions.

Negative factors that will be considered include risks posed to national security, a serious or lengthy criminal record, being a known gang member, or having an egregious record of immigration violations, including a record of illegal reentry and having engaged in immigration fraud.

While prosecutorial discretion may be exercised at any stage of the enforcement proceeding, in order to preserve resources ICE officers, agents and attorneys are asked to exercise it as early as possible and even before a request from the alien or the alien’s advocate or attorney.

A related memorandum by Mr. Morton focuses on victims and witnesses of crime and individuals pursuing legitimate civil rights complaints. The memo, also dated June 17, 2011, states that it is against ICE policy to initiate removal proceedings against such individuals, and reminds its agents to exercise discretion on a case-by-case basis, noting the deterrent effect that detention and deportation actions by ICE may have on a person’s decision and ability to report crimes or protect his/her civil rights and liberties.

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