Legislation vs. Administrative Reliefs, Part II - By: Michael Phulwani, Esq. and David H. Nachman, Esq.

This is the continuation of a series of articles on Legislation vs. Administrative Reliefs and the Memo of March 2, 2011 issued by John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), to all concerned officials with regards to Civil Immigration Enforcement – priorities for the apprehension, detention, and removal of aliens.

2.      Memo of June 17, 2011 from John Morton, Director of ICE to all concerned officials with regards to Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.

Background

One of ICE's central responsibilities is to enforce the nation's civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE 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, the agency's enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system. These priorities are outlined in the ICE Civil Immigration Enforcement Priorities memorandum of March 2, 2011, which this memorandum is intended to support.

Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise "prosecutorial discretion" if it is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. ICE, like any other law enforcement agency, has prosecutorial discretion and may exercise it in the ordinary course of enforcement1.When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency in a given case.

In the civil immigration enforcement context, the term "prosecutorial discretion" applies to a broad range of discretionary enforcement decisions, including but not limited to the following:

·        deciding to issue or cancel a notice of detainer;

·        deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);

·        focusing enforcement resources on particular administrative violations or conduct;

·        deciding whom to stop, question, or arrest for an administrative violation;

·        deciding whom to detain or to release on bond, supervision, personal recognizance, or         other condition;

·        seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;

·        settling or dismissing a proceeding;

·        granting deferred action, granting parole, or staying a final order of removal;

·        agreeing to voluntary departure, the withdrawal of an application for admission, or   other action in lieu of obtaining a formal order of removal;

·        pursuing an appeal;

·        executing a removal order; and

·     responding to or joining in a motion to reopen removal proceedings and to consider             joining in a motion to grant relief or a benefit.

Authorized ICE Personnel

Prosecutorial discretion in civil immigration enforcement matters is held by the Director and may be exercised, with appropriate supervisory oversight, by the following ICE employees according to their specific responsibilities and authorities:

·        officers, agents, and their respective supervisors within Enforcement and Removal Operations (ERO) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;

·        officers, special agents, and their respective supervisors within Homeland Security Investigations (HSI) who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement;

·    attorneys and their respective supervisors within the Office of the Principal Legal Advisor (OPLA) who have authority to represent ICE in immigration removal proceedings before the Executive Office for Immigration Review (EOIR); and

·        the Director, the Deputy Director, and their senior staff.

ICE attorneys may exercise prosecutorial discretion in any immigration removal proceeding before EOIR, on referral of the case from EOIR to the Attorney General, or during the pendency of an appeal to the federal courts, including a proceeding proposed or initiated by CBP or USCIS. If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or close a particular case or matter, the attorney should notify the relevant ERO, HSI, CBP, or USCIS charging official about the decision. In the event there is a dispute between the charging official and the ICE attorney regarding the attorney's decision to exercise prosecutorial discretion, the ICE Chief Counsel should attempt to resolve the dispute with the local supervisors of the charging official. If local resolution is not possible, the matter should be elevated to the Deputy Director of ICE for resolution.

Factors to Consider When Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to –

·        the agency'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 alien came to the United States as a young child;

·        the person's pursuit of education in the United States, 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 legitimate institution of higher education in the United States;

·        whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;

·        the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;

·        the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;

·        whether the person poses a national security or public safety concern;

·        the person's ties and contributions to the community, including 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 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

·        whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.

                                                                                                            To Be Continued…