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Prosecutorial Discretion - core principal in law enforcement, hesitantly used in immigration system
Since 2010- issue rose to prominence in immigration
Resources and priorities Issue – backlogs in courts must be reduced by reasonable enforcement
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The authority of a law enforcement to decide whether and to what degree to enforce the law
◦ criminal cases - Prosecutors decide whether to bring charges, what charges are appropriate, whether to offer a plea
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 stops,
 arrests,
 detention,
 whether to initiate proceedings,
 whether to proceed with cases,
 whether to execute removal orders, etc .
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 whether to initiate proceedings
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Establishes high-level joint DHS/DOJ taskforce to:
◦ Review approx. 300,000 cases pending before IJ,
BIA and federal courts
◦ Ensure that new removal cases conform to DHS enforcement priorities
◦ Issue guidance on the announcement
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Low priority cases will be administratively closed
While initially announced that such cases would be eligible to apply for EAD, now backtracked – need independent basis
◦ 8 C.F.R. Section 274.12(c)(14) for deferred action, or if have other pending application that provides for EAD eligibility (such as adjustment)
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DHS will several months to review all pending cases
ICE attorneys to review cases on their docket
“prior to the expenditure of resources”
Request for prosecutorial discretion can be made at time of hearing
Pilots operated in Baltimore and Denver, finished Jan. 13, 2012 (5,000 and 7,000 cases reviewed respectively)
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June 17, 2010 Morton Memo
Enforcement priorities include:
◦ National Security
◦ Public Safety
◦ Border Security
◦ Repeat Immigration Violators
◦ Recent Border Crossers
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June 17, 2011 ICE Director John Morton issued 2 memos
1 st Memo details
◦ ICE enforcement priorities
◦ Cases appropriate for limited or no enforcement consequences
2 nd Memo specifies
◦ Victims of crimes, witnesses and civil rights litigants deserve special protection
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Nov. 17, 2011 : ICE OPLA – Case by Case
Review of Incoming/Pending cases - includes
Cases on master docket
Cases w/NTAs not yet filed w/EOIR
Non-detained cases w/merits hearings scheduled by 6/17/12
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Begin review nationally make national plan after assessing the two pilot sites in Baltimore/Denver
Advises attorneys to review cases for PD factors in June 17 memo
Draft an operating rule for review (SOP)
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Low priority or positive factors given “prompt and particular care”
◦ Veterans, members of US armed forces
◦ Long time lawful permanent residents
◦ Minors and elderly individuals
◦ Present in the US since childhood
◦ Pregnant or nursing women
◦ Victims of domestic violence, trafficking
◦ Serious mental or physical condition
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While stating that it incorporates the criteria of the June 17 ICE memo, it also says that high priority removal is directed at:
Those who entered illegally or violated status in the last 3 years;
Prior removals;
Egregious immigration violators;
Fraud cases;
Gang members or others who are threat to public safety; national security risks;
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High priority removal:
Criminal convictions for
Felony or multiple misdemeanors,
Illegal entry or fraud, or
Misdemeanors for violence, threats or assault; DUIs; sexual abuse; flight from scene of accident; drug trafficking; or other public safety threats.
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Low priority enforcement/case by case evaluation if:
Armed forces history;
Child in US more than 5 yrs and is in school or completed HS;
Student of higher educ who came to US under age 16, in US more than 5 yrs, HS grad;
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Low priority enforcement:
Victim of domestic violence or crime in US;
LPR ten years or more and has single minor conviction for a non-violent offense;
Person who suffers from serious mental or physical condition requiring treatment in detention;
Person with long term US presence with immediate family who is USC, and compelling ties/contributions here.
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Instructed to evaluate on case-by-case basis, apply totality of the circumstances;
No one factor determinative
All cases also reviewed for national security and public safety concerns
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1 – all non detained cases in the two pilot sites of Baltimore/Denver courts
2 – incoming cases to ICE for evaluation of whether to proceed with NTA
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Plan being developed on how to implement existing caseload review nation-wide
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Trial attorneys review cases for PD factors
Recommend admin closure
Write up proposed motion
Send to Respondent for response
File with court if agrees
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12/5/11 – 1/13/12
Court closed – cases reset to 2014
Attorneys and respondents could submit materials in support of PD to dedicated email at ICE, Ofc of Chief Counsel
ICE contact with atty in writing with proposed
Joint Motion to Admin Close
Pro Se – ICE sends motion and allows response at next hearing
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Review existing cases to determine if any fall within the areas specified in the announcement or memo
Cases currently in removal proceedings
◦ Request admin closure : so far this is the only option ICE has been offering to respondents
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Request specific and appropriate form of relief
Outline why discretion appropriate
Highlight positive factors
Demonstrate no adverse factors
Address problem areas
Make request in writing
Provide supporting documents
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Decision must be in writing
An administrative closure is not lawful residency
Note: only represented cases provided a channel to supplement requests for PD with documents via dedicated email box
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Who will have Notice to Appear issued against them to initiate removal proceedings?
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November 7, 2012 USCIS Memo – Revised
Guidance for Issuance of Notices to Appear
(NTA) – superseded prior guidance from 2006
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Will issue NTAs for:
Termination of Conditional Residence;
Termination of refugee, asylum, or withholding
Asylum referrals
Positive credible fear findings
And – certain NACARA 202 and 203 cases,
HRIFA denials, TPS denials, I-360 denials.
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Will issue NTAs for:
Cases where fraud is part of the record of findings
Egregious public safety cases
Certain naturalization denials if
◦ Criminal issues allow natz eligibility but removable under Sec. 237; or
◦ Inadmissible at time of entry
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Egregious public safety cases (EPS)
Cases where inadmissible or deportable for a criminal offense not on EPS list
Cases with NSEERS violations
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Offices set up Naturalization review panels to review NTA issues and set up a referral process to ICE within 30 days of the memo
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Inconsistency of review criteria
Public education, especially for the pro se
Development of nation-wide plan
Coordination between USCIS, CBP and ICE
More options besides administrative closure are sought (termination, stipulation to relief, etc.)
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CBP not on same page with ICE criteria
EADs – no avenue unless have independent basis
Deferred Action not being considered by ICE for administrative closure
Detained dockets need review
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AILA’s resources, which are excellent - List at www.aila.org/pd with links to govt memos, guidance, and practice advisories
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