ICE Director Encourages Agency to Use Its Prosecutorial Discretion

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Immigration and Customs Enforcement (ICE) Director John Morton recently issued two significant memoranda on the exercise of prosecutorial discretion by enforcement officials which, if followed, will result in a more humanitarian approach to those compelling cases that deserve favorable treatment. Prosecutorial discretion is the authority that an agency has to determine whether and how to enforce the law with respect to a particular case. Like all other enforcement agencies, ICE has prosecutorial discretion. In the ICE context, prosecutorial discretion governs decision-making such as whom to arrest, detain, grant parole as well as when and against whom to initiate removal proceedings or conduct an investigation. When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of its enforcement authority in a case.

The first ICE memo provides broad instructions that establish the agency’s enforcement priorities. It also outlines who within ICE has the power to make discretionary decisions and what factors should guide that decision-making. The following categories were identified as ICE enforcement effort priorities: (1) noncitizens who pose a danger to national security or a risk to public safety; (2) recent illegal entrants; and (3) noncitizens who are fugitives or who otherwise obstruct immigration controls.

The second ICE memo confirms that cases involving crime victims, witnesses, and plaintiffs require a higher level of prosecutorial discretion, and specifically states that it is generally against ICE policy to initiate removal proceedings against such individuals.

While these recent memoranda are a welcome addition to other agency pronouncements on the subject, foreign nationals and their attorneys who seek prosecutorial discretion have an important role to play in requesting a specific type of favorable action in a case, and advocating for the result.

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