DESPITE the temporary restraining order (TRO) issued by a Texas federal judge on February 16, 2015 enjoining the implementation of President Obama’s initiatives for the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the Department of Homeland Security (DHS) and the Office of the Chief Immigration Judge are pushing for a favorable exercise of prosecutorial discretion in the apprehension, detention and removal of undocumented aliens. The TRO enjoins the implementation of the DAPA and expanded DACA, but does not enjoin the enforcement priorities of DHS regarding immigration.
“Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to set enforcement priorities and decide, in a particular case, whether to enforce the law and pursue a case based on said priorities. In the immigration context, it means – “if you are deportable, will the government pursue the case against you now?” If the DHS – through the U.S. Citizenship and Immigration Services (USCIS) or the U.S. Immigration and Customs Enforcement (ICE) – decides not to initiate or continue deportation proceedings against a foreign national who is deportable, that is a favorable exercise of prosecutorial discretion. The USCIS and ICE (which was then a singular agency known as the Immigration and Naturalization Services) have long been exercising prosecutorial discretion even before DHS was created 11 days after the September 11, 2001 terrorist attacks. The current Memorandum on Prosecutorial Discretion is DHS Secretary Johnson’s Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum issued on November 20, 2014. The Memorandum reiterates that DHS should continue to prioritize threats to national security, public safety, and border security and identifies 3 groups of priority aliens targeted for immediate apprehension and removal.
Priority 1 Aliens (threats to national security, border security, and public safety); Priority 2 Aliens (aliens convicted of 3 or more misdemeanor offenses or convicted of a “significant misdemeanor” – like domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; and new immigration violators); and Priority 3 Aliens (other immigration violators) refer to those who have been issued a final order of removal on or after January 1, 2014. The apprehension and removal of these aliens will be prioritized unless they qualify for asylum or another form of relief, or there are factors (for Priority 1 aliens, these factors must be compelling and exceptional) indicating the alien is not a threat to national security, border security, or public safety; or, in the case of Priority 3 aliens, the alien is not a threat to the integrity of the immigration system. Secretary Johnson’s Memorandum also directs immigration officers and attorneys that they may pursue removal of an alien not identified as a priority, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
On April 6, 2015, the ICE’s Office of the Principal Legal Advisor (OPLA) – which handles deportation cases in Immigration Courts – issued a Memorandum directing its attorneys to “review cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities” contained in the Johnson Memorandum, directing that attorneys “generally seek administrative closure or dismissal of cases it determines are not priorities.” Similarly, the Office of the Chief Immigration Judge issued a Memorandum also on April 6, 2015 directing Immigration Judges “to ask ICE attorneys appearing before them at master calendar hearings, on the record, whether the case remains a removal priority for ICE and whether ICE is seeking dismissal or administrative closure. Before deciding whether to close or dismiss the matter, the Judge should of course ask the respondent or his or her representative for the respondent’s position on these matters.”
Scope of Prosecutorial Discretion. According to the Johnson Memorandum, prosecutorial discretion applies not only to the decision to issue, serve, file, or cancel a Notice to Appear (which is a document charging an alien with deportation/removability), but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.
Factors Considered in Exercising Prosecutorial Discretion. The Johnson Memorandum lists several factors for DHS officers and attorneys to consider whether to exercise favorable prosecutorial discretion, which include but not limited to: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. Secretary urges DHS personnel to make decisions based on a totality of the circumstances.
What a Favorable Grant of Prosecutorial Discretion Means for You. A favorable grant of prosecutorial discretion does not confer lawful immigration status or alter the person’s existing immigration status. Prosecutorial discretion is not an affirmative application of an immigration benefit. It applies in the law enforcement context only, exercised with respect to removal proceedings (including the decision whether to place a person in proceedings); detention; parole; and the execution of removal orders. Also, a grant of deferred action – or any other favorable exercise of prosecutorial discretion – does not affect an already existing period of unlawful presence. However, periods of time in deferred action do qualify as periods of authorized stay.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. 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 (415) 495-8088; (619) 955-6277; [email protected].
