I have had lots of clients and friends ask me about the recent Memo that was released by leadership at Immigration and Customs Enforcement relating to those facing deportation from the US. In an effort to educate our audience and to shed some light on what it is and what it isn’t, I will put together several articles over the next few weeks discussing the memo. You can find the memo here:
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
The recent memorandum is from John Morton, Director of Immigration and Customs Enforcement (ICE). It is titled, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.” It calls for ICE agents, officials, and attorneys to use a more critical analysis when considering how best to use its limited resources to handle its mandate to enforce US immigration law. For example, college students who are illegally in the US without any criminal record probably should be less of an enforcement priority than someone illegally in the US with a string of convictions for violent crimes. The decision about whether or not to prosecute the immigration violator falls under ICE’s discretionary authority.
“Prosecutorial discretion” refers to ICE’s authority to determine the degree to which it will enforce US civil immigration laws against a specific foreign national. The options range from detention to deportation, and to charge or not to charge the individual with immigration violations. The memo recognizes that each foreign national’s individual case is different, and those differences ought to be taken into consideration.
ICE personnel specifically authorized to exercise prosecutorial discretion includes Enforcement and Removal Operations (ERO) officers and agents; Homeland Security Investigations (HSI) officers and agents; ICE attorneys within the Office of the Principal Legal Advisory (OPLA); and the Director, Deputy Director, and senior staff. These individuals can decide whether to detain, charge or place immigration law violators into processing for deportation or not.
Garry L. Davis