DHS Houston Amnesty Memorandum
Number of Pages:6
Date Created:June 17, 2011
Date Uploaded to the Library:February 20, 2014
Autogenerated text from PDF
Office the Director Policy Number: 10075 FEA Number: 306-112-0026 U.S. Department Homeland Security 500 12th Street, Washington, D.C. 20536 U.S. Imm igratio and Customs Enforcement June 17, 2011 MEMORANDUM FOR: All Field Office Directors All Special Agents Charge All ChiefCounsel FROM: Director SUBJECT: Exercising Prosecutorial Discretion Consistent with the Civil hnmigration Enforcement Priorities the Agency for the Apprehension, Detention, and Removal ofAliens Purpose This memorandum provides U.S. hnmigration and Customs Enforcement (ICE) personnel guidance the exercise ofprosecutorial discretion ensure that the agencys immigration enforcement resources are focused the agencys enforcement priorities. The memorandum also serves make clear which agency employees may exercise prosecutorial discretion and what factors should considered. This memorandum builds several existing memoranda related prosecutorial discretion with special emphasis the following: Sam Bernsen, Immigration and Naturalization Service (INS) General Counsel, Legal Opinion Regarding Service Exercise ofProsecutorial Discretion (July 15, 1976); Cooper, INS General Counsel, INS Exercise ofProsecutorial Discretion (July 11, 2000); Doris Meissner, INS Commissioner, Exercising Prosecutorial Discretion (November 17, 2000); Cooper, INS General Counsel, Motions Reopen for Considerations ofAdjustment William Howard, Principal Legal Advisor, Prosecutorial Discretion (October 24, Status (May 17, 2001 2005); Julie Myers, Assistant Secretary, Prosecutorial and Custody Discretion (November 2007); John Morton, Director, Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal ofAliens (March 2011 and John Morton, Director, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011). www.ice.gov Exercising Prosecutorial Discretion Consistent with the Priorities the Agency for the Apprehension, Detention, and Removal Aliens The following memoranda related prosecutorial discretion are rescinded: Johnny Williams, Executive Associate Commissioner (EAC) for Field Operations, Supplemental Guidance Regarding Discretionary Referrals for Special Registration (October 31, 2002); and Johnny Williams, EAC for Field Operations, Supplemental NSEERS Guidance for Call-In Registrants (January 2003). Background One ICEs central responsibilities enforce the nations civil immigration laws coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources remove those illegally the United States. ICE must prioritize the use its enforcement personnel, detention space, and removal assets ensure that the aliens removes represent, much reasonably possible, the agencys enforcement priorities, namely the promotion national security, border security, public safety, and the integrity the immigration system. These priorities are outlined the ICE Civil Immigration Enforcement Priorities memorandum March 2011, which this memorandum intended support. Because the agency confronted with more administrative violations than its resources can address, the agency must regularly exercise prosecutorial discretion prioritize its efforts. basic terms, prosecutorial discretion the authority agency charged with enforcing law decide what degree enforce the law against particular individual. ICE, like anYother law enforcement agency, has prosecutorial discretion and may exercise-it the ordinary course enforcement When ICE favorably exercises prosecutorial discretion, essentially decides not assert the full scope the enforcement authority available the agency given case. the civil immigration enforcement context, the term prosecutorial discretion applies broad range discretionary enforcement decisions, including but not limited the following: deciding _issue cancel notice detainer; deciding issue, reissue, serve, file, cancel Notice Appear (NTA); focusing enforcement resources particular administrative violations conduct; deciding whom stop, question, arrest for administrative violation; deciding whom detain release bond, supervision, personal recognizance, other condition; seeking expedited removal other forms removal means other than formal removal proceeding immigration court; The _Meissner memorandums standard for prosecutorial discretion given case turned principally whether substantial federal interest was present. Under this memorandum, the standard principally one pursuing those cases that meet the agencys priorities for federal immigration enforcement generally. Exercising Prosecutorial Discretion Consistent with the Priorities the Agency for the Apprehension, Detention, and Removal Aliens settling dismissing proceeding; granting deferred action, granting parole, staying final order removal; agreeing voluntary departure, the withdrawal application for admission, other action lieu obtaining formal order removal; pursuing appeal; executing removal order; and responding joining motion reopen removal proceedings and consider joining motion grant relief benefit. Authorized ICE Personnel Prosecutorial discretion civil immigration enforcement matters held the Director and may exercised, with appropriate supervisory oversight, the following ICE employees according their specific responsibilities and authorities: officers, agents, and their respective supervisors within Enforcement and Removal Operations (ERO) who have authority institute immigration removal proceedings otherwise engage civil immigration enforcement; officers, special agents, and their respective supervisors within Homeland Sect ity Investigations (HSI) who have authority institute immigration removal proceedings otherwise engage civil immigration enforcement; attorneys and their respective supervisors within the Office the Principal Legal Advisor (OPLA) who have authority represent ICE immigration removal proceedings before the Executive Office for Immigration Review (EOIR); and the Director, the Deputy Director, and their senior staff. ICE attorneys may exercise prosecutorial discretion any immigration removal proceeding before EOIR, referral the case from EOIR the Attorney General, during the pendency appeal the federal courts, including proceeding proposed initiated CBP USCIS. ICE attorney decides exercise prosecutorial discretion dismiss, suspend, close particular case matter, the attorney should notify the relevant ERO, HSI, CBP, USCIS charging official about the decision. the event there dispute between the charging official and the ICE attorney regarding the attorneys decision exercise prosecutorial discretion, the ICE Chief Counsel should attempt resolve the dispute with the local supervisors the charging official. local resolution not possible, the matter should elevated the Deputy Director ICE for resolution Delegation Authority the Assistant Secretary, Immigration and Customs Enforcement, Delegation No. 7030.2 (November 13, 2004), delegating among other authorities, the authority exercise prosecutorial discretion immigration enforcement matters (as defined U.S.C. 101(a)(17)). Exercising Prosecutorial Discretion .Consistent with the Priorities the Agency for the Apprehension, Detention, and Removal Aliens Factors Consider When Exercising Prosecutorial Discretion When weighing whether exercise prosecutorial discretion may warranted for given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited the agencys civil immigration enforcement priorities; the persons length presence the United States, with particular consideration given presence while lawful status; the circumstances the persons arrival the United States and the manner his her entry, particularly the alien came the United States young child; the persons pursuit education the United States, with particular consideratfon given those who have graduated from U.S. high school have successfully pursued are pursuing college advanced degrees legitimate institution higher education the United States; whether the person, the persons immediate relative, has served the U.S. military, reserves, national guard, with particular consideration given those who served combat; the persons criminal history, including arrests, prior convictions, outstanding arrest warrants; the persons immigration history, including any prior removal, outstanding order removal, prior denial status, evidence fraud; whether the person poses national security public safety concern; the persons ties and contributions the community, including family relationships; the persons ties the home country and conditioni:; the country; the persons age, with particular consideration given minors and the elderly; whether the person has U.S. citizen permanent resident spouse, child, parent; whether the person the primary caretaker person with mental physical disability, minor, seriously ill relative; whether the person the persons spouse pregnant nursing; whether the person the persons spouse suffers from severe mental physical illness; whether the persons nationality renders removal unlikely; whether the person likely granted temporary permanent status other relief from removal, including relative U.S. citizen permanent resident; whether the person likely granted temporary permanent status other relief from removal, including asylum seeker, victim domestic violence, human trafficking, other crime; .and whether the person currently cooperating has cooperated with federal, state local law enforcement authorities, such ICE, the U.S Attorneys Department Justice, the Department Labor, National Labor Relations Board, among others. This list not exhaustive and one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion case-by-case basis. The decisions should based the totality the circumstances, with the goal conforming ICEs enforcement priorities. Exercising Prosecutorial Discretion Consistent with the Priorities the. Agency for the Apprehension, Detention, and Removal Aliens That said, there are certain classes individuals that wai;rant particular care. was stated the Meissner memorandum Exercising Prosecutorial Discretion, there are factors that can help ICE officers, agents, and attorneys identify these cases thatthey can reviewed early possible the process. The following positive factors should prompt particular care and consideration: veterans and members the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present the United States since childhood; pregnant nursing women; victims domestic violence; trafficking, other serious crimes; individuals who suffer froin serious mental physical disability; and individuals with serious health conditions. exercising prosecutorial discretion furtherance ofICEs enforcement priorities, the following negative factors should also prompt particular care and consideration byICE officers, agents, and attorneys: individuals who pose clear risk national security; serious felons, repeat offenders, individuals with lengthy criminal record any kind; known gang members other individuals who pose clear danger public safety; and individuals with egregious record immigration violations, including those with record illegal re-entry and those who have engaged immigration fraud. Timing While ICE may exercise prosecutorial discretion any stage enforcement proceeding, generally preferable exercise such discretion early the case proceeding possible order preserve government resources that would otherwise expended pursuing the enforcement proceeding. was more extensively elaborated the Howard Memorandum Prosecutorial Discretion, the universe opportunities exercise prosecutorial discretion large. may exercised any stage the proceedings. also preferable forICE officers, agents, and attorneys consider prosecutorial discretion cases without waiting for alien aliens advocate counsel request favorable exercise discretion. Although affirmative requests from alien his her representative may prompt evaluation whether favorable exercise discretion appropriate given case, ICE officers, agents, and attorneys should examine each such case independently determine whether favorable exercise discretion may appropriate. cases where, based upon officers, agents, attorneys initial examination, exercise prosecutorial discretion may warranted but additional information would assist reaching final decision, additional information may requested from the alien his her representative. Such requests should made conformity with ethics rules governing Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agencyfor the Apprehension, Detention, and Removal ofAliens communication with represented individuals and should always emphasize that, while ICE may considering whether exercise discretion the case, there guarantee that the agency will ultimately exercise discretion favorably. Responsive information from the alien his her representative need not take any particular form and can range from simple letter e-mail message memorandum with supporting attachments. Disclaimer there right the favorable exercise discretion the agency, nothing this memorandum should construed prohibit the apprehension, detention, removal any alien unlawfully the United States limit the legal authority ICE any its personnel enforce federal immigration law. Similarly, this memorandum, which may modified, superseded, rescinded any time without notice, not intended to, does not, and may not relied upon create any right benefit, substantive procedural, enforceable law any party any administrative, civil, criminal matter. For questions concerning such rules, officers agents should consult their local Office Chief Counsel.