On June, 17, 2011, ICE issued a new Memo on Prosecutorial Discretion, which gives hope for Immigration Cases that would otherwise be lost. Although most do not argue that aliens who break the law and/or pose a threat to national security and domestic safety should be excused back to their country, many also agree there are those in the United States who are administratively here illegally, but should be given the opportunity to remain. Many are parents, children, grandparents and many are in school, trying to work, and trying to benefit society. ICE’s Memo on Prosecutorial Discretion gives hope to those who are not a threat to national security and domestic safety, by giving enforcement officers and an Arizona immigration attorney’s discretion to administratively close certain immigration cases. In turn, this discretion translates to additional time for those with immigration cases before ICE to seek advice from attorneys, in order to legitimize their situation.
Reason behind ICE’s Memo on Prosecutorial Discretion
ICE issued the memo on Prosecutorial Discretion in order to counteract their overburdened immigration enforcement resources. The hope is ICE will be able to focus their enforcement resources on those immigration cases that pose more immediate and higher threats to national security and domestic safety. Rather than focusing on immigration cases of law-abiding students, children, parents, and grandparents, ICE enforcement officers and attorneys are instructed to focus on criminals, terrorists, and threats to national security and domestic safety.
Application of ICE’s Memo on Prosecutorial Discretion
The memo on Prosecutorial Discretion instructs those employed with ICE to use their prosecutorial discretion to focus on the “agency’s enforcement priorities.” In the memo, ICE establishes a non-exhaustive list, instructing enforcement officers and attorneys on what ICE enforcement priorities are, and what exactly they are able to do with this “prosecutorial Discretion.” ICE enforcement officers and attorneys are instructed to consider everything on a case-by-case basis, giving less priority to the following:
· Elderly Individuals
· Pregnant or nursing women
· Individuals present in the United States since childhood
· Veterans and members of the U.S. armed forces; long-time lawful permanent residents; minors,
· Minors who have been in the United States for more than five years, and are either in school or have successfully completed high school (or it equivalent);
· People who came to the United States under the age of sixteen, who have been in the United States for more than five years, have completed high school (or its equivalent), and are now pursuing or have successfully completed higher education in the United States;
· Those over the age of sixty-five who have been present in the United States for more than ten years;
· Those who are 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;
· Those who have been a lawful permanent resident for ten years or more and have a single, minor conviction for a non-violent offense;
· Those who suffer from a serious mental or physical condition that would require significant medical or detention resources; or
· Those who have had a very long-term presence in the United States, immediate family member(s) who are United States Citizens, and have established compelling ties and made compelling contributions to the United States.
The negative factors that ICE lists for enforcement priorities when exercising Prosecutorial Discretion with Immigration Cases are:
· Individuals who pose a clear risk to national security;
· Serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
· Known gang members or other individuals who pose a clear danger to public safety; and
· Individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.
ICE Enforcement Officers and Attorneys Use of Prosecutorial Discretion
A few months ago, Janet Napolitiano, Secretary of the Department of Homeland Security (DHS), ordered a review of nearly 300,000 pending deportation immigration cases, applying this prosecutorial discretion, to ensure ICE’s resources were being prioritized. As a result, the DHS recommended 1,667 cases (about 14%) to be “Administratively Closed.”
Prosecutorial Discretion Impact on Immigration Cases
If the attorney can ensure the alien in question is not a threat to national security and public safety, the attorney is allowed to “administratively close” a particular case or matter by exercising their prosecutorial discretion. However, “administratively closing” an immigration case is not the same as dismissing the case. Rather, the immigration case remains on the deportation docket and ICE can reactivate it at any time. “Administrative closure” simply places the immigration case on the back burner while higher priority cases are prosecuted. Although Prosecutorial Discretion will not dismiss immigration cases, it provides hope by giving more time for those who are in the United States illegally to seek counsel from attorneys to legitimize their presence in the United States.
What you should do if you have an immigration case before ICE
Those who have an immigration case before ICE should request a review of their case under the standards of ICE’s memo for prosecutorial discretion. ICE will then review the immigration case under the standards set forth in the memo and either administratively close the case or keep it on the docket. Either way, this review and/or having the immigration case administratively closed will provide essential time to seek advice from an Arizona immigration lawyer.
Gunderson, Denton & Peterson, P.C.
By Brent Gunderson
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213