ICE on Prosecutorial Discretion: Real Relief or Business as Usual?

Director of U.S. Immigration and Customs Enforcement (ICE) John Morton released a June 17, 2011, memorandum intended to provide additional guidance to ICE personnel on exercising prosecutorial discretion. In this context, favorable prosecutorial discretion refers to the government’s ability to choose not to enforce certain penalty provisions within the immigration laws against a particular person, thereby providing some relief in deserving, sympathetic cases.

Example: B-2 Tourist Overstay

A foreign national who has traveled to the United States on a visitor (B-2) visa is generally admitted for a maximum stay of six months. If that foreign national stays beyond his or her lawful admission (without requesting and obtaining an extension), s/he is removable (deportable) from the United States.

The fact that an individual is legally removable from the United States does not necessarily mean that ICE is required to take action to remove the person for the status violation. The decision of whether to begin removal proceedings, or whether to physically remove a foreign national from the United States, is one left to the discretion of ICE personnel.

Exceptional Humanitarian Factors to be Considered

There are instances in which a case might present exceptional humanitarian factors that warrant the decision not to remove an individual from the United States. In the example above, prosecutorial discretion allows ICE to distinguish between a person who overstays the authorized period because s/he was hospitalized, as opposed to an individual who simply remained beyond her/his allowed tourist stay, and began working and living in the United States. Potentially, one who simply overstayed might also be eligible for prosecutorial discretion in some instances.

ICE’s Ability to Weigh Favorable and Unfavorable Factors

A foreign national might warrant discretionary treatment rather than the full exercise of ICE’s power if s/he is:

  • ill, or
  • taking care of ill family member/s.

Likewise, a foreign national might justify an ICE decision not to institute removal proceedings, or that permits that person to remain in the United States despite a final order of removal if s/he was:

  • brought by his/her parents to the United States at a very young age, or
  • has contributed to the community in an important way.

Conversely, a foreign national likely to be a priority for ICE to remove from the country, one who would not warrant the positive exercise of prosecutorial discretion, is one who has:

  • committed serious criminal acts,
  • has a long criminal record of minor offenses ,
  • has previously been ordered removed, but reentered the United States illegally, or
  • has a long history of repeated immigration violations.

Thus, the exercise of prosecutorial discretion involves a balancing of the equities presented by a case – i.e. the good and bad facts about an individual, so that ICE can focus on the removal of those who are the most dangerous and problematic.

Background of Prosecutorial Discretion

Prosecutorial discretion is a long-standing legal principle, including within immigration law. U.S. immigration personnel have always been permitted to exercise this type of discretion to some extent. However, the scope of this authority, and the extent to which ICE personnel are actually expected to exercise it, has long been a controversial topic within the immigration agencies.

Since 1976, the relevant agencies, Legacy Immigration and Naturalization Service (INS) and the present U.S. Department of Homeland Security (DHS), have released at least ten memoranda attempting to clarify the responsibilities of immigration personnel in regard to the exercise of prosecutorial discretion. The June 17, 2011 Morton memorandum is the most recent attempt to standardize procedures in this regard.

Discretion is Not Backdoor Amnesty

The Morton memorandum makes it clear that ICE is not attempting to provide a “backdoor” amnesty. This claim has been alleged by anti-immigrant forces whenever the government has suggested exercising any leniency toward immigration violators. Although the government does not have the resources to go after each and every violator, such restrictionists insist upon immediate removal of everyone who is removable. This simply clogs the system and reduces resources to go after truly dangerous and detrimental violators.

ICE: Limited Resources and Must Be Prioritized

Director Morton points out that the agency does not have the required resources to pursue every administrative immigration violation:

“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. …

“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. …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.”

Prosecutorial Discretion

The term prosecutorial discretion can encompass a wide variety of actions or temporary inaction, depending upon the context. ICE may decide not to issue a notice to appear (NTA) placing an individual into removal proceedings. It has authority to cancel an NTA after it has been issued. It may decide to terminate removal proceedings that have already begun (sometimes to continue cases that are pending or can be filed with the USCIS). It may permit an individual to accept “voluntary departure” and leave the United States without efforts to pursue a removal order.

Other options include deciding not to appeal the decision of an Immigration Judge granting some relief to an individual, even if they could potentially challenge the decision. In some cases, the decision may be made to grant what is known as “deferred action” and hold off any action against a foreign national who is in the United States unlawfully – permitting the foreign national to remain in the U.S. – at least temporarily.

Favorable and Unfavorable Discretionary Factors for ICE to Consider

The Morton memorandum gives detailed guidance regarding the factors ICE officers should consider, both positively and negatively, in making discretionary prosecutorial decisions. For example, the memorandum counsels that the following persons should be considered particularly favorably:

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

Conversely, the memorandum states, some individuals must be considered in a particularly negative light. Among these are:

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

Dissension Within ICE

Although the memorandum from Director Morton is, undeniably, a positive development for advocates who have long criticized ICE’s uneven application of prosecutorial discretion, its ultimate effect is yet to be determined. The leadership of ICE may create appropriate policy, but it is the responsibility of the rank-and-file employees of ICE to implement the directive. The outlook in this regard is far less positive.

The union representing ICE officers (which has previously taken a vote of “no confidence” in Director Morton) issued a press release on June 23, 2011, criticizing the Morton memorandum as a “law enforcement nightmare” that is “aimed at stopping the enforcement of U.S. immigration laws in the United States.” Unfortunately, the negative attitude of ICE officers towards the exercise of prosecutorial discretion could render the new memorandum ineffectual. It remains to be seen whether ICE leadership will be able to enforce this big-picture guidance upon a reluctant workforce.

Copyright © 2011, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.