Prosecutorial Discretion
On August 18, 2011, the Department of Homeland Security announced a review of all administrative removal cases pending before and incoming to the Executive Office for Immigration Review (EOIR) of the Department of Justice. ICE launched the case-by-case review late last year, nearly six months after Director John Morton issued his now-famous memos on prosecutorial discretion (View). Agency attorneys review the files to identify individuals as provisionally eligible for “administrative closure.”
Guidance to ICE Attorneys – August 18, 2011
| Guidance to ICE Attorneys Reviewing the CBP, USCIS, and ICE Cases Before the Executive Office for Immigration ReviewI. IntroductionOn August 18, 2011, the Department of Homeland Security announced a review of all administrative removal cases pending before and incoming to the Executive Office for Immigration Review (EOIR) of the Department of Justice. The purpose of the review is to identify those cases that reflect a high enforcement priority for the Department of Homeland Security. This review covers all CBP, USCIS, and ICE removal cases, whether the cases are before immigration judges or the Board of Immigration Appeals. The review to which this guidance applies shall focus on the criteria laid out in Section II, but nothing in this guidance should be construed to prohibit or discourage the consideration of all of the factors laid out in the June 17, 2011 Prosecutorial Discretion Memorandum. II. Criteria for ReviewThe following removal cases are enforcement priorities for the Department of Homeland Security and should generally be pursued in an accelerated manner before EOIR. These cases involve an alien: • who is a suspected terrorist or national security risk; • who has a conviction or a felony or multiple misdemeanors, or illegal entry, re-entry, or immigration fraud, or a misdemeanor violation involving: • violence, threats, or assault, • sexual abuse or exploitation, • driving under the influence of alcohol or drugs, • flight from the scene of an accident, • drug distribution or trafficking, or • other significant threat to public safety; • who is a gang member, human rights violator, or other clear threat to public safety; • who entered the country illegally or violated the terms of their admission within the last three years; • who has previously been removed from the country; • who has been found by an immigration officer or immigration judge to have committed immigration fraud; or who otherwise has an egregious record of immigration violations.The following cases are generally not enforcement priorities for the Department of Homeland Security and should be carefully considered for prosecutorial discretion on a case-by-case basis to avoid unnecessary diversion of resources from the enforcement priorities identified above. These cases involve an alien- • who is a member in good standing of the Coast Guard or Armed Forces of the United States, an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, or the spouse or child of such a member or veteran; • who is a child, has been in the United States for more than five years, and is either in school or has successfully completed high school (or its equivalent); • who came to the United States under the age of sixteen, has been in the United States for more than five years, has completed high school (or its equivalent), and is now pursuing or has successfully completed higher education in the United States; • who is over the age of sixty-five and has been present in the United States for more than ten years; • who is a victim of domestic violence in the United States, human trafficking to the United States; or of any other serious crime in the United States; • who has been a lawful permanent resident for ten years or more and has a single, minor conviction for a non-violent offense; • who suffers from a serious mental or physical condition that would require significant medical or detention resources; or • who has very long-term presence in the United States, has an immediate family member who is a United States citizen, and has established compelling ties and made compelling contributions to the United States.III. National Security and Public Safety Checks If an ICE attorney decides to exercise prosecutorial discretion to dismiss or administratively close. A particular case or matter, the attorney must first ensure that the alien in question is vetted for national security and public safety concerns. No exercise of discretion under this case review may proceed without this vetting.IV. Special Rule for Asylum CasesICE attorneys may agree to the administrative closure of removal proceedings of an individual who filed an asylum application if the individual jointly requests administrative closure with the immigration judge. Upon the filing of such a joint request, however, the individual will be subject to 8 CFR 208.7(a)(2) which tolls the 180-day clock for employment authorization eligibility.V. Individual Case ReviewICE attorneys are reminded that the decision to exercise prosecutorial discretion should be made on a case-by-case basis and on the totality of the circumstances presented by the individual case in question. The factors discussed in section ~I do not replace or supersede the June 17, 2011 Prosecutorial Discretion Memorandum, which remains the cornerstone for assessing whether prosecutorial discretion is appropriate in any circumstance. No one positive factor is determinative, and no one factor should be considered solely in isolation. General guidance such as this guidance cannot provide a “bright line” test, and many cases will require a balancing of the various factors laid out in the June 17, 2011 Prosecutorial Discretion Memorandum and earlier memoranda on the same subject. Reasonable minds can differ on close cases, and ICE attorneys should consult closely with their ICE supervisors whenever questions, concerns, or issues arise. ICE attorneys should base their decisions on the information in the record and are not expected to conduct additional investigation, although they may seek additional information if easily and timely available. Similarly, individuals may submit to ICE attorney’s additional information relevant to their case for consideration under this process. VI. Notice to Charging ComponentIf an ICE attorney decides to exercise prosecutorial discretion to dismiss or administratively close a particular case or matter, the attorney must notify a relevant supervisory charging official at CBP, USCIS, or ICE about the decision. In the event there is a dispute between the supervisory official and the ICE attorney regarding the attorney’s decision to exercise prosecutorial discretion, the ICE Chief Counsel should attempt to resolve the dispute locally. If local resolution is not possible, the matter should be elevated to the Deputy Director of ICE for resolution.VII. DisclaimerAs there is no right to the favorable exercise of discretion by the agency, nothing in this guidance should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE, CBP, or USCIS or any of their respective personnel to enforce Federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. |
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