On November 20, 2014, Department of Homeland Security (DHS) Secretary Jeh Johnson announced a new guidance on prosecutorial discretion entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (“Johnson Memo”) which became effective on January 5, 2015.
The Johnson Memo instructs that “in the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decision, including deciding . . . whether to grant deferred action . . . instead of pursuing removal in a case.”
Pursuant to the Johnson Memo, the following constitute DHS immigration enforcement priorities: (i) Priority 1 for threats to national security, border security, and public safety; (ii) Priority 2 for misdemeanants and new immigration violators; and (iii) Priority 3 for all other immigration violations.
The Notice to Appear. The Notice to Appear (NTA) is the charging document issued by an authorized agent of the US Department of Homeland Security (DHS), to noncitizens who the government believes are inadmissible or removable. The NTA is issued to place a noncitizen in a full removal proceeding before an immigration judge, who will determine whether the noncitizen is to be removed or allowed to remain in the United States.
Prosecutorial Discretion Before an NTA is Filed in Court. The Immigration and Nationality Act (INA) requires 10 days to elapse between the service of the NTA and the first removal hearing, unless the noncitizen requests an earlier hearing date in writing. A person who is issued an NTA should contact an experienced immigration attorney who handles deportation defense immediately. In some cases, it may be possible to seek prosecutorial discretion with the agency that issued the NTA before the NTA is filed with the court. At this stage, prosecutorial discretion may include the decision whether or not to file an NTA, what charges to include in an NTA, whether to cancel an issued NTA, and whether to amend an NTA that has been issued before it is filed.
Who Can Issue an NTA? Various officials within DHS are empowered to issue NTAs in different circumstances. The US Immigration and Customs Enforcement (ICE), which is an arm of DHS that conducts investigations and enforcement and removal operations, may issue NTAs.
The US Citizenship and Immigration Services (USCIS) may also issue an NTA when it finds a noncitizen has not complied with regulations governing admission or maintaining lawful status after admission.
The US Customs and Border Protection (CBP) may also issue NTAs. CBP operates primarily at designated ports of entry and manages customs, immigration, security, and agricultural inspection duties. CBP makes thousands of determinations daily, concerning the admissibility of arriving noncitizens.
A Criminal Conviction’s Negative Impact on Immigration Status. The Record of Conviction (ROC) details an individual’s criminal history—his/her arrest, what s/he plead to, and the final judgment/sentence. It is important that an individual’s criminal attorney work with an immigration attorney who is experienced in deportation defense to protect their records of conviction in the criminal proceeding stage, to minimize the negative impact on that individual’s immigration status. The relief(s) available to an individual facing removal/deportation proceedings will depend on that individual’s record of conviction.
Not every criminal conviction will result in deportation and not every deportation proceeding will lead to an order of deportation. Nevertheless, certain commission of crimes and/or convictions will render a non-citizen inadmissible and/or deportable, and will run the risk of being placed in deportation proceedings. An individual should act quickly and consult both with a criminal attorney and with an experienced criminal immigration attorney who handles deportation defense, to mitigate the negative consequences of a criminal conviction to his/her immigration status.
It is important to be informed and know your options. An experienced immigration firm or attorney will be able to help you understand what immigration terms mean specific to the regulations, what steps might be taken for your particular case, and the options available to you under the evolving immigration laws.
***
Atty. Lilli A. Baculi is an associate attorney in Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; [email protected]
