Prosecutorial discretion

On June 17, 2011, US Immigration and Customs Enforcement (ICE) Director John Morton issued a Memorandum to provide guidance on the exercise of prosecutorial discretion (the Morton Memo). “Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide, in a particular case, whether – and to what degree – to enforce the law. A law enforcement officer who decides not to enforce the law against a person has favorably exercised prosecutorial discretion.
Scope of Prosecutorial Discretion. 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. In simple terms, it means – “if you are deportable, will the government pursue the case against you now?” Both ICE and the US Citizenship and Immigration Services (USCIS) have the authority to exercise prosecutorial discretion. Prosecutorial discretion can be exercised on either an agency-wide basis or by an individual officer or employee. When ICE adopts priorities streamlining its enforcement efforts, for example, it is exercising prosecutorial discretion as an agency with respect to how to spend its resources. In contrast, a USCIS officer who decides to cancel a Notice to Appear (NTA) – which is a document charging an alien with deportation/removability – as improvidently issued, is exercising favorable prosecutorial discretion on an individual basis. Prosecutorial Discretion can be exercised at any stage of the proceedings – prior to filing an NTA (or a decision not to issue an NTA), while the noncitizen is in removal proceedings (a grant of deferred action), after issuance of a removal order (stay of removal).
Factors considered in exercising prosecutorial discretion. The Morton Memo lists several factors for ICE officers to consider when deciding whether to exercise prosecutorial discretion, which includes but is not limited to:
1) Criminal history – the nature and severity of any criminal conduct, the time elapsed since the offense occurred and evidence of rehabilitation, and whether the alien is a repeat offender.
2) Immigration status: Lawful permanent residents generally warrant greater consideration.
3) Length of resident in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity.
4) Humanitarian Concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the alien’s family.
5) Immigration history: Aliens without a past history of violating the immigration laws warrant favorable consideration to a greater extent than those with such a history.
USCIS Policy Memorandum. Notwithstanding the Morton Memo, USCIS itself has issued an internal policy memorandum on November 7, 2011 that establishes guidelines for referring cases to ICE and issuing NTAs. The USCIS Memo has a broader scope than outlined in the Morton Memo, and in fact seems to cut into the very core of prosecutorial discretion as established by the Morton Memo and its predecessors. For example, according to the said November 7, 2011 Memo, USCIS will refer all cases involving Egregious Public Safety (EPS) to ICE. An EPS case is a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of: Murder, rape, sexual abuse of a minor, offenses relating to explosive materials or firearms, crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year. This list is not exhaustive. Thus, according to the USCIS Memo, a mere investigation into an alien’s involvement with any of the listed “egregious” crimes, even if it does not lead to an arrest, or even a mere arrest while awaiting proper disposition by a court, will be referred to ICE for an issuance of an NTA.
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. For example, a deferred action by either ICE or USCIS, is a decision not to pursue enforcement against a person for a specific period of time, in the exercise of the agency’s prosecutorial discretion. This is the same with the decision not to issue an NTA. A grant of deferred action – or any other favorable exercise of prosecutorial discretion – does not affect any already existing period of unlawful presence. However, periods of time in deferred action do qualify as periods of stay authorized.

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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. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. 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].