Update on Prosecutorial Discretion

In March of 2011 the Bureau of Immigration and Customs
Enforcement (“ICE”) within the Department of Homeland Security
(“DHS”) outlined a new set of priorities for the apprehension,
detention and removal of aliens. These priorities are based
on the concept of “prosecutorial discretion,” which refers to
DHS’ authority to not enforce immigration laws against certain
individuals and groups. Outlined in two memos, the first calls on
ICE attorneys and employees to refrain from pursuing noncitizens
with close family, educational, military, or other ties in the U.S. and
instead spend the agency’s limited resources on persons who pose
a serious threat to public safety or national security. The second
memo focuses on exercising discretion in cases involving victims,
witnesses to crimes, and plaintiffs in good faith civil rights lawsuit.
ICE has also revised its detention policy which now states that
“absent extraordinary circumstances or the requirements of
mandatory detention” it would not expend detention resources on
aliens who are suffering from serious physical or mental illness, or
who are disabled, elderly, pregnant, or nursing, or demonstrate that
they are primary caretakers of children or infirmed person.
The concept of “prosecutorial discretion” is based on two premises.
The first is the need to use limited resources wisely. ICE calculates
that it only has the resources to remove 400,000 aliens per year
(less than 4 % of the estimated undocumented population).
Consequently prioritization is required in order to focus on those
who pose the greatest danger to the U.S. Second, it’s based on
the idea that the law should be administered in a humane and
compassionate way – taking into account factors such as the tender
age, or old age of an individual, the existence of a medical or mental
health condition, the presence of family in the U.S., and other
positive contributions the alien has made to the United States. One
of the first recipients of “prosecutorial discretion” more than thirty
years ago was the music legend, John Lennon.
In addition to the above factors, ICE will consider the following
when deciding whether prosecutorial discretion is warranted
including: the agency’s civil immigration enforcement priorities;
the length of a person’s presence; the circumstance of their arrival
and manner of entry; their educational status and pursuit of
higher education; the military service of immediate relatives;
their criminal history; their immigration history; their ties to and
conditions in their home country; whether the person’s nationality
renders removal unlikely; and whether the person is likely to
granted legal status or some other form of relief.
The implementation of the new “Prosecutorial Discretion” policy is
currently underway. Last November ICE launched a comprehensive
training program on the appropriate use of this policy. Soon
thereafter ICE attorneys began reviewing all incoming removal
cases – those initiated by ICE officers as a result of arrest, as well
as those initiated by USCIS as a result of the denial of benefits.
This review is designed to identify cases most clearly eligible
and ineligible for a favorable exercise of discretion with a goal to
weeding out the cases that would be a waste of judicial resources.
US prosecutors in Denver and Baltimore just completed a pilot
program which covered the review of thousands of pending
deportation cases in those offices to determine which aliens
might have their cases administratively closed. Similar reviews are
planned across the country to allow ICE to identify those cases that
reflect a high enforcement priority. It is expected that this process
could result in between ten and twenty percent of the existing cases
being administratively closed.
While some have criticized this program as a backdoor “amnesty”
it should be noted that a grant of prosecutorial discretion does not
confer legal status on an otherwise undocumented immigrant.
Nor are those granted prosecutorial discretion eligible to receive
work authorization or put on a pathway to legalization. It does not
pardon the alien’s past immigration transgressions either. It merely
leaves the alien alone for the time being, and is subject to review by
ICE in the future should their enforcement priorities change.
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