On June 17, 2011, John Morton, the Director of US Immigration and Customs Enforcement (ICE) issued a memo to all ICE personnel about exercising “prosecutorial discretion” in deciding whether or not to remove/deport aliens. (Prosecutorial discretion is “the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual”).
This memo is very important because Director Morton is acknowledging that ICE has “limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets, to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.” In other words, there are too many people who are subject to removal, and not enough ICE personnel or assets to remove them all.
Since ICE cannot remove/deport everyone, Director Morton instructed ICE agents and trial attorneys (prosecutors) to exercise prosecutorial discretion, by prioritizing or targeting the really “bad guys”, and don’t be so kulit about going after the law-abiding illegal aliens, whose only “crime” is wanting to have a better life for themselves and their families.
In exercising prosecutorial discretion, ICE personnel have the power and authority to: issue, serve, or to decide whether or not to issue or serve a Notice To Appear (NTA), which is a document placing a person in removal/deportation; cancel or withdraw an NTA that has already been issued; settle, or even dismiss, a pending removal proceeding; join in a Motion to Reopen a removal proceeding with the alien’s attorney; join in a motion to grant some form of relief or benefit, such as a green card. In other words, ICE officials can decide whether or not to initiate removal proceedings. If removal proceedings have been started, they have the “prosecutorial discretion” to “dismiss” those proceedings. If there already is a deportation/removal order on record, ICE personnel can even agree to join in a motion to reopen those proceedings and/or agree to allow the person to get a green card.
Director Morton’s memo notes that, “ICE attorneys may exercise prosecutorial discretion in any immigration removal proceeding… including a proceeding proposed or initiated by CBP or USCIS”. (As many people are aware, in many instances, when USCIS denies a person’s adjustment of status (Form I-485), USCIS may issue an NTA, placing the person in removal proceedings, and then transfer the case over to ICE, for prosecution. This new Morton memo allows ICE to nevertheless decide against pursuing removal, and instead could dismiss the case, even though USCIS issued the NTA, and even if the case is in immigration court, or on appeal.)
The memo goes on to list a number of factors ICE should consider when deciding whether or not to exercise prosecutorial discretion, including: ICE’s enforcement priorities; the person’s length of presence in the US; the circumstances of the person’s arrival in the US, especially if he entered the US as a young child; the person’s educational level, with special consideration to those who graduated from high school or have a college degree; service in the military; criminal history; prior fraud or denials; ties and contributions to the community; “whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative”; and whether the person is likely to be granted permanent residence, such as a person who is married to, and being petitioned by, a US citizen spouse, etc. In other words, why go through the trouble of trying to deport/remove someone who is already eligible for a green card?
This new “Prosecutorial Discretion” memo is very encouraging, as ICE is saying that it will no longer “deport everyone”. Instead, it will start showing some leniency and compassion towards people who do not pose a risk to America, and don’t have a criminal history.
If you are in removal proceedings, or had been removed, but now have a way to get a green card (such as a love marriage to a citizen), I would strongly suggest that you seek the advice of a reputable attorney, who could evaluate your situation, and determine whether your case or situation fits within this new memo. Your attorney could possibly help convince ICE to exercise “prosecutorial discretion” on your behalf.
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