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ImmigrationTALK: Prosecutorial Discretion in Removal & Detention Cases

Feb 05, 2012 News

 

By: Attorney Gail S. Seeram,       

Recently, John Morton, Director of Immigration and Customs Enforcement (ICE), issued two new memoranda giving guidance and encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of immigration enforcement.  The memorandum outlines who within ICE is authorized to make discretionary enforcement decisions and what factors they should consider.
However, in cases where the immigrant has a criminal history these types of cases are deemed enforcement priorities and prosecutorial discretion will not be exercised in these types of cases.  ICE will consider the following factors in deciding whether to exercise prosecutorial discretion:
1. The person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
2.   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;
3.  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;
4. 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;
5.  The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
6. The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
7.  Whether the person poses a national security or public safety concern;
8.  The person’s ties and contributions to the community, including family relationships;
9. The person’s ties to the home country and condition in the country;
10. The person’s age, with particular consideration given to minors and the elderly;
11. Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
12.  Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
13. Whether the person or the person’s spouse is pregnant or nursing;
14. Whether the person or the person’s spouse suffers from severe mental or physical illness;
15. 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
16.          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.
In exercising prosecutorial discretion, Immigration and Custom Enforcement may administratively close a pending removal case (removal proceedings delayed), grant voluntary departure, grant deferred action (defer a pending removal), reissue or cancel a Notice to Appear, or release on bond or order of supervision a person being detained.
Note, in exercising prosecutorial discretion, it is unlikely that a pending removal case would be terminated unless there are extenuating factors present.  In order to request prosecutorial discretion in a pending removal case or detention case, an immigration attorney would submit the request to Immigration Custom and Enforcement (ICE).
Send your comments and feedback to [email protected], visit her website at www.Go2Lawyer.com or connect on www.facebook.com/Go2Lawyer.  Questions? Call 407-292-7730 or toll-free at 1-877-GAIL-LAW.

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