Prosecutorial Discretion Could Get You Out of Removal Proceedings

If you’ve been following what is happening in the immigration law arena, you may have noticed a term that has been used a lot in the last six months: “prosecutorial discretion.”  The reason for its being in the news is because in the summer of 2011, ICE issued a series of memos regarding prosecutorial discretion.  I have not previously discussed this topic because even though the memos have existed for about six months, ICE has not put in place any formal program for implementing the policy goals of the memos.  That has changed, and many ICE field stations, through the Office of the Chief General Counsel, have begun accepting written requests for prosecutorial discretion. If you are in detention or removal proceedings, this may be an opportunity for you to end the proceedings against you so that you can resume your life.

What is prosecutorial discretion?  ICE is a law enforcement agency.  As with all law enforcement agencies, it has the discretion to move forward with a case or not (“press charges”).  There are too many immigration violations big and small committed by too many people, and ICE simply does not have the resources to go after every single one.  It must prioritize its resources so that it can advance its policy goals as efficiently as possible.  For instance, a person who jaywalks is probably breaking the law.  However, there are more serious crimes out there, so it is unlikely the police or the district attorney would want to spend the time and the effort to convict a person of jaywalking.  Catching every jaywalker is probably not going to create a safer society.  It may make things worse, because valuable resources are being devoted to enforce petty crimes, leaving fewer resources to deal with more serious ones.

ICE is faced with similar limitations, and it must choose what types of immigration violations or violators to which it will devote its resources.  Through its memos, ICE has expressed that it must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, ICE’s enforcement priorities, specifically the promotion of national security, border security, public safety, and the integrity of the immigration system.

In the context of immigration cases, ICE may exercise prosecutorial discretion in many ways.  For instance, ICE can:

  • decide to issue or cancel a notice of detainer;
  • decide to issue, reissue, serve, file, or cancel a Notice to Appear (the charging document that initiates removal actions);
  • focus its resources on certain violations or misconduct;
  • decide whom to stop, question, or arrest for an administrative violation;
  • decide whom to detain or to release on bond, supervision, personal recognizance, or other condition;
  • seek expedited removal or other forms of removal by means other than a formal removal proceedings in immigration court;
  • settle or dismiss a case already in proceedings;
  • grant deferred action such as parole, or staying a final order or removal;
  • agree to voluntary departure in lieu of formal removal;
  • decide to not pursue an appeal;
  • decide not to execute a removal order; and/or
  • respond to a motion to reopen or join in a motion to grant relief.

For those in removal hearings, the most important point above is that ICE may choose to exercise prosecutorial discretion by settling or dismissing a case already in proceedings.  That is, agree to an administrative termination.  If ICE does this, then your case would be dismissed and you would be free to go about your business.

In its memos, ICE discussed the factors that it would consider in deciding whether or not to favorably exercise its prosecutorial discretion.  These factors include:

  • ICE’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 person came to the U.S. as a young child;
  • the person’s pursuit of education in the U.S., 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 institute of higher learning in the U.S.;
  • whether the person or an immediate relative has ever served in the U.S. military, with particular consideration given to those who served in combat;
  • the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • whether the person has a history of prior removal, outstanding order of removal, prior denials of status, or evidence of fraud;
  • whether the person poses a national security threat or public safety concern;
  • the person’s ties and contributions to the community, and 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 the 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 resident 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/or
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S. Attorneys of Department of Justice, the Department of Labor, or National Labor Relations Board;

The list of factors which might trigger a favorable grant of prosecutorial discretion is broad.  If you meet some of these factors and are in removal proceedings or detention, it is a good idea to request prosecutorial discretion as a form of relief.  ICE lists certain factors which would be particularly favorable.  Persons who fall into these categories below would be given special consideration:

  • veterans and members of the U.S. military;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • persons present in the U.S. since childhood;
  • pregnant or nursing women;
  • victims of domestic violence, trafficking, or other serious crimes;
  • persons who suffer from serious mental or physical disabilities; and/or
  • persons with serious health conditions.

On the other hand, according to ICE, if you fall into one of the below categories, it is unlikely that a grant of prosecutorial discretion will be exercised in your favor:

  • persons who post a clear risk to national security;
  • serious felons, repeat offenders, or persons with a lengthy criminal record of any kind;
  • known gang members or other persons who pose a clear danger to public safety; and
  • persons with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

What prosecutorial discretion is not.  As discussed above, prosecutorial discussion is an informal manner for ICE to decide whether or not to move forward with a case against certain individuals.  A favorable exercise of prosecutorial discretion does not confer any substantive rights.  That means, even if your case was dismissed, you don’t automatically gain any new immigration status.  All that happens is that you get to return to your life without worrying about being removed.  If you had no status beforehand, you won’t have any status afterwards.  There’s also the danger that ICE will change its mind sometime in the future and reinitiate a case against you.

If you believe that you may qualify for prosecutorial discretion based upon any of the factors discussed above, you should contact a qualified immigration attorney to discuss your case. I welcome all questions or inquiries on this topic.

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