New ICE Prosecutorial Discretion Memo!

Last week, John Morton, the Director of Immigration and Customs Enforcement (ICE) reminded its officials that they have a duty and obligation to use good judgment in the prosecution of immigration cases. Even though this memo does not change the law in any way, nor does it end the controversial Secure Communities program, it does serve as a much-needed guide for officials with regards to how, when and why to exercise prosecutorial discretion in immigration cases. This memo offers a synthesis of the nature of prosecutorial discretion, when it can be exercised and what kind of factors should be taken into account, while also listing a concrete framework for guiding decision-making.

In the memo, Mr. Morton states that it should never be assumed that officials are powerless in affecting the outcome of a case. Instead, he points our the fact that individual officials and attorneys both have the authority to determine whether or not the positive outcomes in a given case outweigh the value of prosecuting that case. In fact, the memo urges each official to use this discretion in each of the cases handled regardless of whether it is explicitly solicited by an immigrant or an attorney. The memo also reiterates the need to triage cases based on ICE priorities, emphasizing the goal of utilizing limited resources to go after those cases of individuals whose activities pose a threat of harm to the country and those who live in it.

The memo lists 19 factors that should be thought of as red flags in a case, indicating the need to look and think carefully about whether it makes sense to go forward. This non-exhaustive list of special factors include whether the person is a veteran or related to someone in the military, came to the United States at a young age, is pregnant or nursing, has serious physical or mental disability, is very young or very old, or has a serious health problem. Consequently, this memo will have a profound effect on DREAM Act candidates since they may fit under many of these categories, while it is also likely to have a significant effect on vulnerable non-citizens and immigrant groups, and military families as well.

While the affected immigrants would currently not have any legal relief, this new direction makes it clear that they should not be targeted and their cases should not be pursued for removal proceedings, or deportation. By articulating the kind of factors that should go into the decision-making, the Obama Administration via ICE, is making clear its priorities and signaling the types of cases that merit an individualized assessment. As such, this is a long overdue contribution to smart immigration enforcement.

The challenge will come when ICE attorneys, agents, and other officials are reminded of this memo and asked to follow its guidelines.

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