WITH the USICE Prosecutorial Discretion program under way, thousands of cases pending before the US Immigration Courts and Board of Immigration Appeals (BIA) are ripe for review to determine whether such cases should be terminated or administratively closed and the Respondents in those proceedings should be allowed to stay and work legally in the US. Although the Obama Administration has been met with criticism from Republican members of Congress regarding the use of “prosecutorial discretion” in pending removal proceedings to focus priorities on removing the most dangerous aliens and close certain cases, the policy is justified to allow the Government to alleviate crowded dockets throughout the nations Immigration Courts. Since Prosecutorial Discretion will not be exercised; and deportation proceedings will not be terminated or closed, without the agreement of the USICE attorneys, Respondents in proceedings wishing to take advantage of this program must properly present all of the facts and circumstances to make a compelling case.
Originally announced via memorandum by Mr. John Morton, Director of US Immigration & Customs Enforcement (USICE) in June of 2011, the program instructs USICE District Counsel and deputies to exercise “prosecutorial discretion” in removal proceedings. In 2010, USICE had issued a Memo from Mr. Morton that had directed USCIS to expedite visa petitions affecting Respondents in removal proceedings and dismiss proceedings against certain foreign nationals who appear to be eligible for relief from removal, such as adjustment of status to lawful permanent resident. Since that Memo was met with a certain degree of hostility from Republican Congressmen, the picture remained unclear as to what the Administration’s position would be with respect to the prosecution of Removal Proceedings. The June 2011 Memo made it clear that USICE is to prioritize certain types of cases to alleviate backlogs within the Executive Office for Immigration Review (EOIR) and lighten the Immigration Judges’ dockets throughout the US and focus priorities on removing dangerous unlawful immigrants.
The now famous “Morton Memo” called for USICE to move to dismiss removal proceedings against individuals who appear eligible for relief, or who are a low-priority for removal, as long as there are no serious adverse factors or any ongoing investigations involving the Respondents. In these cases, the USICE District Counsel may agree to dismiss the proceedings if the Respondent is the beneficiary of an application or petition filed with USCIS with a current priority date; the Respondent appears eligible for adjustment and deserving of a favorable exercise of discretion; and the Respondent files the appropriate application and the Respondent is statutorily eligible for adjustment of status or for a waiver of any grounds of inadmissibility that may apply. Finally, the Memo also directs the USICE to agree to dismiss certain removal cases in their discretion, even if Respondents are not Beneficiaries of visa petitions with a current priority dates as long as the Respondents’ cases present certain other factors.
As the program has begun in major cities throughout the US, Respondents in proceedings must present evidence that they deserve a favorable exercise of prosecutorial discretion from the USICE. Any such request should establish that the respondent is a low-priority individual for removal with no criminal background, gang affiliations or otherwise a danger to the community or security risk, with many positive factors or “equities” to demonstrate their worthiness for prosecutorial discretion. Such factors include whether the person: has graduated from a US High School and/or is pursuing a college education; has been a long-time resident of the US; has a close US Citizen relative; is the primary caretaker for a minor, elderly person or person with disabilities; suffers from illness; has been a victim of a crime or assisted law enforcement in any investigation; is a veteran or has relatives who have served or are actively serving in the armed forces; would face severe economic or socio-political problems in his home country; among a host of other factors.
The Administration has provided ample justification for the program, explaining that the US lacks resources to remove some 12-15 million people unlawfully present in the US. As Homeland Security Secretary Ms. Napolitano recently explained to Congress, “there are hundreds of thousands of cases currently pending before DOJ immigration courts, many of which could take years to resolve. Tens of thousands more are pending review in federal courts. Each of these cases costs considerable taxpayer dollars, and those involving low priority individuals divert resources away from and delay the removal of higher priority individuals. The expenditure of significant resources on cases that fall outside of DHS enforcement priorities hinders our public safety mission by consuming litigation resources and diverting resources away from higher-priority individuals.” Nonetheless, this does not mean that the USICE will agree to terminate or administratively close the cases of individuals who fail to present a compelling case for prosecutorial discretion.
As the Offices of the USICE Counsel around the country have recently received guidance from the Administration on the exercise of prosecutorial discretion, it behooves Respondents in removal proceedings to present their cases in the most favorable light possible to the USICE Attorneys who will be responsible for making decisions to pursue or close cases. In any individual case, an in-depth evaluation of all factors involved and both a humanistic and legalistic presentation of these factors within the framework of the Morton Memo is required to present a compelling case for prosecutorial discretion.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
