Exercises of Prosecutorial Discretion in Removal Proceedings

            Exercises of Prosecutorial Discretion in Removal Proceedings

            For over three decades the use of prosecutorial discretion in U.S. immigration enforcement has been based on two premises.[1] The first is the necessity of using limited resources wisely. The second is compassionate and humanitarian use of law‐enforcement tools.

On November 20, 2014, the US Department of Homeland Security Secretary Jeh Johnson issued new guidance on the Department’s civil immigration enforcement priorities. This Enforcement memorandum, specifies the categories of noncitizens at the greatest threat to national security or federal public interest.

The Enforcement Memorandum specifically stipulates that prosecutorial discretion can be exercised by any branch of DHS in many forms and at many points in the enforcement process. In the immigration context, DHS officers have the authority to favorably exercise prosecutorial discretion in a wide range of circumstances[2] including when to issue serve or cancel a Notice to Appear, whether to grant administrative closure, dismiss, appeal or join in a motion on a case; or whether to grant deferred action, parole, or stay of removal instead of pursuing removal in a case.

In simple terms those individuals who do not fall into one of the four priority groups should not be placed into removal proceedings and for those in proceedings, their case should be administratively closed.

  1. Current DHS Priority’s and Factors for Prosecutorial Discretion

            The Enforcement Memorandum explains that, because of limited resources, DHS should focus its immigration enforcement efforts on cases that fall within the following priorities:

Priority One; Focuses on threats to national security, border security, and public safety and asserts that the highest priority of enforcement should be directed at:

  • aliens that engage in or are suspected of terrorism or espionage, or who otherwise pose a danger to national security;
  • aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
  • aliens convicted of an offense for which an element of the crime was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a), or aliens not younger than 16 years of age who intentionally participate in an organized criminal gang to further the illegal activity of the gang;
  • aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and
  • aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

Priority Two: focuses on “misdemeanant and new immigration violators” and sets the second highest priority for apprehension and removal to:

  • aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the aliens immigration status, provided the offenses arise out of three separate incidents;
  • aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody and does not include a suspended sentence);
  • aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 and
  • aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

Priority Three: focuses on “other immigration violators” specifically those who have been issued a final order of removal on/or after January 1, 2014.

  1. Implementation

            Since the Enforcement Memorandum, ICE has stated that it is committed in determining whether individuals currently in removal proceedings fall within the new enforcement priorities.[3]  In addition ICE’s Office of the Principal Legal Advisor issued its own guidance on April 6, 2015, directing all OPLA attorneys that they “should generally seek administrative closure or dismissal of cases [they] determine… are not priorities [under the memo].”

  Individuals in removal proceedings who believe they do not fall into the priority classes should seek qualified representation to request administrative closure of their case.

[1] See Memorandum from Bo Cooper, Commissioner of Immigration and Naturalization Service on Exercise of Prosecutorial Discretion (June 20, 2011); Memorandum from Doris Meissner, Commissioner of Immigration and Naturalization Service, on Exercising Prosecutorial Discretion (Nov. 17, 2000); Memorandum from William J. Howard, Principal Legal Advisor, Prosecutorial Discretion (October 24, 2005); Memorandum from Julie L. Myers, Assistant Secretary, Prosecutorial and Custody Discretion (November 7, 2007); John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement (2010), [hereinafter Morton, Civil Immigration Enforcement] http://www.ice.gov/doclib/detention‐reform/pdf/civil_enforcement_priorities.pdf; and John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, U.S. Immigration and Customs Enforcement, (2011), [hereinafter Morton, Victims, Witnesses, and Plaintiffs], http://www.ice.gov/doclib/secure‐communities/pdf/domestic‐violence.pdf.

[2] See; Enforcement Memo, at 2

[3] See ICE Immigration Action Webpage, available at http://www.ice.gov/immigrationaction

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