The ICE Prosecutorial Discretion Memo Part 2
This article is the second in a series in which we are addressing the recent memorandum from ICE on exercising discretion when enforcing immigration law. You can find a copy of the memo here:
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
The memorandum instructs ICE personnel to consider how to enforce the law against a foreign national according to the ICE priorities. ICE enforces US civil immigration laws based on identified priorities, including national and border security, public safety, and preserving the immigration legal system. However, its resources are limited and should be focused on those individuals who have or who have the potential to do harm to this nation or its citizens and legal guests.
The memorandum guides ICE personnel to review various factors and conduct an “individualized assessment” of each case before it. As I mentioned in the last article, a college student who is illegally in the US without a criminal record should not be considered as high of an enforcement priority as someone who has a track record of violent crime convictions, in my view. Favorable prosecutorial discretion occurs when ICE does not enforce the “full scope” of the US civil immigration laws against a foreign national. The memorandum presents general situations where ICE can exercise positive discretion:
· Decisions on notices to appear – this is the document that charges an individual with removal or deportation from the US;
· Decisions on notices of detainer – this is the document that requires the detention of a non-US citizen who is in the custody of criminal authorities until ICE has a chance to investigate;
· How to use enforcement resources based on the gravity of the administrative violation;
· Decisions on administrative violations;
· Decisions on detainments, releases, supervisions, etc. (i.e. whether or not to keep a foreign national in detention)
· Decisions on deportations other than through the formal process with the immigration court;
· Negotiations at proceedings about whether to proceed or dismiss a deportation case;
· Decisions on deferred action, parole, or stays of removal orders (legal options that postpone the enforcement of a removal order or otherwise allow someone to enter or remain in the US despite a formal order of deportation);
· Decisions on voluntary departure;
· Pursuit of appeals;
· Execution of a removal order (i.e. whether or not to actually send someone out of the US);
· Responses to motions to reopen removal proceedings and decisions on joining a motion to grant relief.
This list is not exhaustive. It is in these kinds of situations that ICE should consider the foreign national’s personal situation to determine whether or not the full extent of prosecution is appropriate.
Garry L. Davis