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Prosecutorial Discretion Criteria: Questions Abound

In an earlier post, Prosecutorial Discretion: “Backdoor Amnesty”? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket “low priority” cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo
The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to the home country and conditions in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

ICE states: “This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”

In addition, the memo requires that particular attention be given to:

• veterans and members of the U.S. armed forces;
• long-time lawful permanent residents;
• minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims of domestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and • individuals with serious health conditions.

Further, ICE states: “In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers,agents, and attorneys:

• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.”

ICE’s exercise of discretion can come into play anywhere along the spectrum from initial contact in the field with an individual to the point of deciding whether to carry out a removal order. “While ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding.”

Victim, Witness, Plaintiff Memo
The second ICE memo concentrates on victims and witnesses to crimes and plaintiffs in judicial proceedings. Specifically, this ICE memo considers:

• victims of domestic violence, human trafficking, or other serious crimes;
• witnesses involved in pending criminal investigations or prosecutions;
• plaintiffs in non-frivolous lawsuits regarding civil rights or liberties violations; and • individuals engaging in a protected activity related to civil or other rights (for example union organizing or complaining to authorities about employment discrimination or housing conditions) who may be in a non-frivolous dispute with an employer, landlord or contractor.

“In deciding whether or not to exercise discretion, ICE officers, agents, and attorneys should consider all serious adverse factors. Those factors include national security concerns or evidence the alien has a serious criminal history, is involved in a serious crime, or poses a threat to public safety. Other adverse factors include evidence the alien is, a human rights violator or has engaged in significant immigration fraud.” The exercise of prosecutorial discretion in the conditions above is in addition to already existing avenues for relief under the Trafficking Victims Protection Act (TVPA), its subsequent reauthorization, and the Violence Against Women Act (VAWA) that also protect victims of crime and include specific provisions for victims of domestic violence, victims of certain other crimes, and victims of human trafficking in which people can file for residence or status based on self-petitions, U or T visas.

Questions and More Questions, As of September 5, 2011
What we don’t know at this point are answers to the following questions:
1) How much presence in the U.S. is required to meet some of the “lengthy residence” factors mentioned above?
2) How young must a child have been to have “lived in the US since childhood” or to be one that arrived in the U.S. as a “young child”?
3) How old is “elderly”?
4) What is a “serious” illness or mental health problem?
3) What types of or how many immigration violations constitute “repeat violations” under the court culling criteria for “repeat immigration violators?”
4) What types of crimes constitute “violent felonies”, “threat to public safety,” “serious criminal history,” or “serious felon”?
5) How long is “longtime permanent resident”?
6) Would a person who grew up in the U.S. and graduated from high school but is not in college or the military qualify? And, if so, up to what age?
7) What about LGBT individuals whose partners are American citizens or green card holders? They are not mentioned in this memo specifically. Theoretically, that would be a factor to consider in the totality of circumstances, and the lists above are not exclusive.
8) Who is a person that “poses a clear danger to public safety”? Would that be someone who is in a state that does not allow undocumented individuals to get drivers’ licenses and is caught driving without a license? What about a person arrested for DUI but not charged or convicted? What about a person charged with petty theft?
9) The memo on “low priority” cases in the courts references “zero tolerance” for recent border crossers. How recent is recent?
10) What exactly will the courts do with “low priority” cases? “Administratively close” (take off the calendar but retain jurisdiction)? “Terminate” (take the cases out of the courts altogether)? or continue (postpone) the next hearing?
11) Who are “known” gang members?
12) What will happen to people newly encountered or arrested by ICE? Will they be let go? Will they be detained? Will they be put into removal proceedings but cases not calendared?
13) When will the DHS/Immigration Court working group begin going through their cases and how long will that take?
14) How does ICE or the Court decide whether a plaintiff in a civil proceeding to protect civil liberties has brought a nonfrivolous lawsuit?

Of course, there will be more questions as this policy gets implemented. However, it is important to remember that neither ICE nor the Court is required to favorably exercise their discretion in any case. This is about prioritizing limited resources and priorities can change within the agencies involved.