PROSECUTORIAL DISCRETION CHANGES –

2011 /2012

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Prosecutorial Discretion - core principal in law enforcement, hesitantly used in immigration system

Since 2010- issue rose to prominence in immigration

Resources and priorities Issue – backlogs in courts must be reduced by reasonable enforcement

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The authority of a law enforcement to decide whether and to what degree to enforce the law◦ criminal cases - Prosecutors decide whether to

bring charges, what charges are appropriate, whether to offer a plea

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◦In immigration cases (civil)under DHS: ICE exercises discretion on:

stops, arrests, detention, whether to initiate proceedings, whether to proceed with cases, whether to execute removal orders, etc.

CIS exercises discretion on: whether to initiate proceedings

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Establishes high-level joint DHS/DOJ taskforce to:◦ Review approx. 300,000 cases pending before IJ,

BIA and federal courts◦ Ensure that new removal cases conform to DHS

enforcement priorities◦ Issue guidance on the announcement

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Low priority cases will be administratively closed

While initially announced that such cases would be eligible to apply for EAD, now backtracked – need independent basis◦ 8 C.F.R. Section 274.12(c)(14) for deferred action,

or if have other pending application that provides for EAD eligibility (such as adjustment)

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DHS will several months to review all pending cases

ICE attorneys to review cases on their docket “prior to the expenditure of resources”

Request for prosecutorial discretion can be made at time of hearing

Pilots operated in Baltimore and Denver, finished Jan. 13, 2012 (5,000 and 7,000 cases reviewed respectively)

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June 17, 2010 Morton Memo Enforcement priorities include:

◦ National Security◦ Public Safety◦ Border Security◦ Repeat Immigration Violators◦ Recent Border Crossers

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June 17, 2011 ICE Director John Morton issued 2 memos

1st Memo details◦ ICE enforcement priorities◦ Cases appropriate for limited or no enforcement

consequences 2nd Memo specifies

◦ Victims of crimes, witnesses and civil rights litigants deserve special protection

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Nov. 17, 2011 : ICE OPLA – Case by Case Review of Incoming/Pending cases - includes

1.Cases on master docket2.Cases w/NTAs not yet filed w/EOIR3.Non-detained cases w/merits hearings

scheduled by 6/17/12

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Begin review nationally make national plan after assessing the two

pilot sites in Baltimore/Denver Advises attorneys to review cases for PD

factors in June 17 memo Draft an operating rule for review (SOP)

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Low priority or positive factors given “prompt and particular care”◦ Veterans, members of US armed forces◦ Long time lawful permanent residents◦ Minors and elderly individuals◦ Present in the US since childhood◦ Pregnant or nursing women◦ Victims of domestic violence, trafficking ◦ Serious mental or physical condition

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While stating that it incorporates the criteria of the June 17 ICE memo, it also says that high priority removal is directed at:

Those who entered illegally or violated status in the last 3 years;

Prior removals; Egregious immigration violators; Fraud cases; Gang members or others who are threat to

public safety; national security risks;

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High priority removal: Criminal convictions for Felony or multiple misdemeanors, Illegal entry or fraud, or Misdemeanors for violence, threats or

assault; DUIs; sexual abuse; flight from scene of accident; drug trafficking; or other public safety threats.

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Low priority enforcement/case by case evaluation if:

Armed forces history; Child in US more than 5 yrs and is in school

or completed HS; Student of higher educ who came to US

under age 16, in US more than 5 yrs, HS grad;

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Low priority enforcement: Victim of domestic violence or crime in US; LPR ten years or more and has single minor

conviction for a non-violent offense; Person who suffers from serious mental or

physical condition requiring treatment in detention;

Person with long term US presence with immediate family who is USC, and compelling ties/contributions here.

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Instructed to evaluate on case-by-case basis, apply totality of the circumstances;

No one factor determinative All cases also reviewed for national security

and public safety concerns

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1 – all non detained cases in the two pilot sites of Baltimore/Denver courts

2 – incoming cases to ICE for evaluation of whether to proceed with NTA

Plan being developed on how to implement existing caseload review nation-wide

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Trial attorneys review cases for PD factors Recommend admin closure Write up proposed motion Send to Respondent for response File with court if agrees

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12/5/11 – 1/13/12 Court closed – cases reset to 2014 Attorneys and respondents could submit

materials in support of PD to dedicated email at ICE, Ofc of Chief Counsel

ICE contact with atty in writing with proposed Joint Motion to Admin Close

Pro Se – ICE sends motion and allows response at next hearing

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Review existing cases to determine if any fall within the areas specified in the announcement or memo

Cases currently in removal proceedings ◦ Request admin closure : so far this is the only

option ICE has been offering to respondents

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Request specific and appropriate form of relief

Outline why discretion appropriate Highlight positive factors Demonstrate no adverse factors Address problem areas Make request in writing Provide supporting documents

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Decision must be in writing An administrative closure is not lawful

residency Note: only represented cases provided a

channel to supplement requests for PD with documents via dedicated email box

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Who will have Notice to Appear issued against them to initiate removal proceedings?

November 7, 2012 USCIS Memo – Revised Guidance for Issuance of Notices to Appear (NTA) – superseded prior guidance from 2006

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Will issue NTAs for: Termination of Conditional Residence; Termination of refugee, asylum, or

withholding Asylum referrals Positive credible fear findings And – certain NACARA 202 and 203 cases,

HRIFA denials, TPS denials, I-360 denials.

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Will issue NTAs for: Cases where fraud is part of the record of

findings Egregious public safety cases Certain naturalization denials if

◦ Criminal issues allow natz eligibility but removable under Sec. 237; or

◦ Inadmissible at time of entry

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Egregious public safety cases (EPS) Cases where inadmissible or deportable for

a criminal offense not on EPS list Cases with NSEERS violations

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Offices set up Naturalization review panels to review NTA issues and set up a referral process to ICE within 30 days of the memo

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Inconsistency of review criteria Public education, especially for the pro se Development of nation-wide plan Coordination between USCIS, CBP and ICE More options besides administrative closure

are sought (termination, stipulation to relief, etc.)

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CBP not on same page with ICE criteria EADs – no avenue unless have independent

basis Deferred Action not being considered by ICE

for administrative closure Detained dockets need review

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AILA’s resources, which are excellent - List at www.aila.org/pd with links to govt memos, guidance, and practice advisories

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