This article is the third 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 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.
Positive factors are those that ICE should consider to exercise favorable prosecutorial discretion. The factors are tools to help ICE identify when to use positive discretion according to ICE priorities. Furthermore, no factor alone is dispositive, and ICE agents, officers, and attorneys should consider all relevant factors based on the “totality of the circumstances.” Positive factors include:
· Whether the foreign national is a veteran or member of the US army;
· The length of time the foreign national has spent in the US as a legal permanent resident;
· The foreign national’s age (preference given to minors and elderly);
· Whether the foreign national has lived in the US since his or her childhood;
· Whether the foreign national is pregnant or nursing;
· Whether the foreign national is a victim of domestic violence or trafficking;
· Whether the foreign national has a serious health condition or mental or physical disability.
If these kinds of things are applicable to an individual’s case, the encouragement in the memo is for ICE to be judicious about prosecuting a case to the full extent of the law. Doing so takes tremendous resources that may be better used against those who have serious criminal record and other issues, listed below:
· Whether the foreign national presents an apparent risk to national security or public safety;
· Whether the foreign national is a serious felon or gang member;
· The number of immigration violations that foreign national has committed including illegal entries and fraud.
The large number of situations where ICE can exercise prosecutorial discretion and consider positive or negative factors suggests an expectation that ICE provide more precise evaluations that are sensitive to ICE priorities as well as a foreign national’s specific circumstances.
While ICE agents, officials, and attorneys should perform these detailed evaluations on their own, the foreign national may also request that ICE exercise prosecutorial discretion. ICE has asked that we make such requests sparingly so as to not consume too much of ICE’s limited resources with our requests. A favorable exercise of discretion does not itself result in legal status for the individual who has benefited from it, so keep that in mind. It just delays the legal inevitable. If you have been the beneficiary of ICE discretion – congratulations! Now you need to meet with a qualified immigration attorney to best assess what options you have going forward to find a legal way to remain in or return to the US. If you have been arrested by ICE and are waiting for the hearing, you should consult with a qualified attorney to discuss possibly requesting ICE to apply this authority to you.
Garry L. Davis