Report: ICE Failing to Implement Prosecutorial Discretion

The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) have found that Immigration and Customs Enforcement (ICE) officers and attorneys across the country are applying different standards on prosecutorial discretion despite the fact that the Department of Homeland Security (DHS) implemented a specific policy to follow. In their report, which includes information on all 28 ICE branch offices nationwide, there is evidence that the majority of ICE offices have not even implemented these new directives. Evidently, there is a need for ICE and DHS to take on a new leadership initiative on this issue and issue additional guidance since it may not have been clear enough for all immigration officials to follow in their day-to-day duties. The memo issued this past June was essentially an outline for ICE agents and attorneys that comprised of factors that would deem an immigration case a low priority for enforcement action. The list included those immigrants who were tied to the United States through either family members serving in the armed forces, contributions to the community, schooling, or through marriage to a citizen regardless of the couples’ gender. Even though enforcement officials were supposed to consider these factors when deciding what course of action to take in a particular case, the report found that few ICE offices had actually begun to implement the guidance, with most being actively resistant to do so. AILA President Eleanor Pelta had the following comment to say: “We felt that ICE’s June 2011 memoranda about the use of prosecutorial discretion in certain types of immigration cases were clear and straightforward. But these survey results show that ICE agents and attorneys are not willing to use the discretion they are responsible for implementing without further guidance. They are asking for more, and the agency’s leadership should help them get it.” According to Benjamin Johnson, Executive Directors of the AIC, the memo “lays out a basic premise in law enforcement: the proper exercise of discretion is an integral part of any law enforcement effort to focus its resources effectively. If, as this survey reveals, many local immigration officials are unwilling to accept this basic premise, then the challenge for DHS and ICE is to back the memo up with the leadership, training and support necessary to make sure that these policies are actually being implemented.” What ICE agents and attorneys need to understand is that this guidance provides them with more tools to utilize their resources in a most effective manner so as to better further their law enforcement objectives. Needless to say, it also helps them administer the laws fairly and in a way that is best suited to respect the rights of immigrants so that they may not needlessly languish in detention centers. For their sake, and for the sake of the countless families that are directly affected, it is our hope that ICE officials quit their obstinate resistance to implement prosecutorial discretion and start using their power fairly and equally across the country.