Ninth Circuit asks DHS if it intends to exercise 'prosecutorial discretion' on cases pending before the court

On Feb. 6, 2012, the Ninth Circuit Court of Appeals (which is one level below the US Supreme Court) published five separate decisions, requesting that the government advise the court on whether, “the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this Court.” This request was made in light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion.

This is great news for people with pending immigration cases, as even the Ninth Circuit wants to know if DHS will exercise “prosecutorial discretion,” since it would greatly reduce the court’s backlog of pending petitions/appeals.

By way of background, on June 17, 2011, ICE Director John Morton issued a memo to ICE Attorneys concerning “prosecutorial discretion”, which instructed DHS to prioritize cases involving aliens who posed a danger to society, were convicted criminals, etc. The memo also indicated that ICE would (on a case by case basis) effectively “leave alone” (for now) aliens who did not pose such a danger and/or had a readily available way to legalize their status. In other words, why waste time and resources prosecuting cases against aliens who were hardworking and posed little danger to the US? The Morton memo even encouraged DHS to consider re-opening and/or dismissing cases with final deportation/removal orders, to enable those aliens to adjust status.

In these five published decisions, it appears that the Ninth Circuit also wants to know whether it should continue to clog its dockets (or calendar) with cases that would seemingly fit within the guidelines of the Morton memo, and would warrant ICE Attorneys exercising prosecutorial discretion. The Ninth Circuit even listed what it believed to be the various “equities” or sympathetic factors in those cases, warranting the exercise of prosecutorial discretion:

1. In one case, the aliens had “a long-term presence in the US and have two US citizen children. They do not appear to have any criminal convictions.”

2. In another case, the alien had a long term presence in the US, and had two US citizen daughters, one of whom suffered from asthma, and he did not appear to have any criminal convictions.

3. In still another case, the alien had a long-term presence in the US, had two US citizen children, and did not appear to have any criminal convictions.

4. In yet another case, the alien entered the US at the age of 15, and had been in the US for over five years, and did not appear to have any criminal convictions.

5. In the last case, the aliens had a long term presence in the US, had a US citizen daughter, are the beneficiary and derivative beneficiary of an approved I-130 (relative) petition, and did not have any criminal convictions.

It appears that these are the types of cases that would warrant the exercise of “prosecutorial discretion”, and the Ninth Circuit wants to know if DHS will exercise prosecutorial discretion (and thereby lighten DHS’ and the court’s workload).

If you are in removal proceedings, have a final order of removal, and/or your case is on appeal/review, you may want to seek the advice and assistance of a reputable attorney, who could evaluate your case, and perhaps negotiate with ICE, to exercise prosecutorial discretion, especially if you have a legitimate way to legalize your status now. As you can see from the Ninth Circuit’s description of these various cases, the aliens in those cases, although perhaps removable/deportable, do not represent a high risk, and thus would appear to be worthy of prosecutorial discretion — just like you.    

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