On November 17, 2011, Principal Legal Advisor Peter S. Vincent at U.S.
Immigration and Customs Enforcement (ICE) issued a memorandum concerning
case-by-case review of both incoming and pending cases for compliance
with ICE’s civil enforcement priorities as set forth by ICE Director
John Morton in a June 2011 memorandum entitled “Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities
of the Agency for the Apprehension, Detention, and Removal of Aliens”
(Morton memorandum). Mr. Vincent simultaneously released guidance
to ICE attorneys reviewing cases before the Executive Office for
Immigration Review (EOIR).
Policy Memorandum
The memorandum, entitled “Case-by-Case Review of Incoming and Certain
Pending Cases” (Vincent memorandum), was issued to all chief counsel. It
states that, beginning immediately, all Offices of Chief Counsel (OCC)
must review for compliance cases in which the notices to appear have not
been filed with the EOIR, cases on the master docket, and all
nondetained cases with merits hearings scheduled up to seven months from
the date of issuance of the Vincent memorandum. After a two-month
period, the Vincent memorandum states, ICE will evaluate the results and
determine whether modifications are necessary before continuing with the
policy.
The Vincent memorandum refers attorneys to the Morton memorandum as well
as the corresponding guidance for specific factors that they should
focus on during each case evaluation. In addition, the Vincent
memorandum refers attorneys to the following memoranda issued by
Director Morton for further guidance:
• Guidance Regarding the Handling of Removal Proceedings of Aliens with
Pending or Approved Applications or Petitions (Aug. 20, 2010); and
• Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs
(June 17, 2011).
Attorneys are advised in the Vincent memorandum to use the criteria to
identify cases as eligible or ineligible for a favorable exercise of
prosecutorial discretion. Attorneys should use the evaluation to decide
whether to continue proceedings before the EOIR or seek an
administrative closure.
The Vincent memorandum directs the OCC to immediately draft and
implement a standard operating procedure (SOP) establishing a review
process. The SOP must include:
• assistant chief counsel/senior attorney initial review;
• supervisory review;
• notification process to individuals where the OCC decides to exercise
prosecutorial discretion in the absence of a request;
• use and monitoring of an electronic mailbox for the receipt of
additional documentation that individuals wish to be considered during
the prosecutorial discretion review process;
• notification to a supervisory official at Enforcement and Removal
Operations, Homeland Security Investigations, U.S. Citizenship and
Immigration Services (USCIS), or U.S. Customs and Border Protection
(CBP) of the decision to exercise prosecutorial discretion; and
• national security and public safety checks for any case being
considered for administrative closure or dismissal.
The memorandum also requires the following language be included in the
SOP:
Some individuals may decline prosecutorial discretion and elect to
proceed before the immigration court. In some instances, applicants for
immigration benefits whose applications are denied by USCIS are entitled
to de novo review before an immigration judge (IJ). Asylum and Temporary
Protected Status are two examples. See, e.g. 8 C.F.R. §
208.14(c)(1)(2011); 244.10(c)(1)-(2) (2011). Moreover, some adjustment
of status provisions also provide for renewal of a USCIS-denied
application before an IJ. See, e.g. id. [8 CFR] §§ 209.1(e), 209.2(f),
245.2(a)(5)(ii). In addition, some forms of immigration relief or
protection may be granted only in immigration court, including
cancellation of removal under section 240A of the Immigration and
Nationality Act, 8 U.S.C. § 1229b, as well as withholding and deferral
of removal under 8 C.F.R. §§ 1208.16-17.
Guidance to ICE Attorneys
The guidance notes that in August 2011, the Department of Homeland
Security (DHS) announced that it would be reviewing administrative
removal cases pending and incoming before the EOIR in order to identify
cases that are of high priority for DHS. The review applies to all
CBP, USCIS, and ICE removal cases before IJs or the Board of Immigration
Appeals. The guidance sets out criteria to assist ICE attorneys in that
review. Also, the guidance admonishes attorneys that the decision to
exercise prosecutorial discretion should be made on a case-by-case
basis, taking into account the totality of the circumstances. Attorneys
are warned that the guidance does not provide a bright-line test and
that many cases will require a balancing of many factors. Attorneys are
encouraged in the guidance to consult with their supervisors and seek
additional information when it can be easily and quickly obtained.
The guidance lists both enforcement priority cases as well as cases in
which the alien involved is not generally considered an enforcement
priority. The cases identified as enforcement priorities requiring
accelerated adjudication involve an alien:
• who is a suspected terrorist or national security risk;
• who has a conviction for–
• a felony or multiple misdemeanors;
• illegal entry, reentry, or immigration fraud; or
• a misdemeanor violation involving–
• violence, threats, or assault;
• sexual abuse or exploitation;
• driving under the influence of alcohol or drugs;
• flight from the scene of an accident;
• drug distribution or trafficking; or
• other significant threat to public safety;
• who is a gang member, human rights violator, or other clear threat to
public safety;
• who entered the country illegally or violated the terms of his or her
admission within the last three years;
• who has previously been removed from the country;
• who has been found by an immigration officer or immigration judge to
have committed immigration fraud; or
• who otherwise has an egregious record of immigration violations.
Cases that are not generally enforcement priorities and should be
reviewed for prosecutorial discretion on a case-by-case basis involve an
alien:
• who is a member in good standing of the Coast Guard or Armed Forces of
the U.S., is an honorably discharged veteran of the Coast Guard or Armed
Forces, or is the spouse or child of a member or veteran;
• who is a child, has been in the U.S. for more than five years, and is
either in school or has successfully completed high school or its
equivalent;
• who came to the U.S. under the age of 16, has been in the U.S. for
more than five years, has completed high school or its equivalent, and
is now pursuing or has successfully completed higher education in the
U.S.;
• who is over the age of 65 and has been present in the U.S. for more
than 10 years;
• who is a victim of domestic violence in the U.S., human trafficking to
the U.S., or any other serious crime in the U.S.;
• who has been a lawful permanent resident for 10 years or more and has
a single, minor conviction for a nonviolent offense;
• who suffers from a serious mental or physical condition that would
require significant medical or detention resources; or
• who has very long-term presence in the U.S., has an immediate family
member who is a U.S. citizen, and has established compelling ties and
made compelling contributions to the U.S.
The guidance also clarifies that, if an ICE attorney decides that
prosecutorial discretion is warranted, he or she must vet the alien in
the case to ensure that he or she is not a national security or public
safety concern before exercising any discretion. If, after evaluating a
case, an ICE attorney concludes that it merits prosecutorial discretion,
the attorney must notify the relevant charging supervisory official at
CBP, USCIS, or ICE. Disputes between the ICE attorney and the relevant
supervisory official regarding the exercise of prosecutorial discretion
should be mediated by the ICE chief counsel and elevated to the deputy
director if a resolution is not reached.
With regard to asylum matters, the guidance instructs that: ICE
attorneys may agree to the administrative closure of removal proceedings
of an individual who filed an asylum application if the individual
jointly requests administrative closure with the immigration judge. Upon
the filing of such a joint request, however, the individual will be
subject to 8 CFR 208.7(a)(2) which tolls the 180-day clock for
employment authorization eligibility. A separate document entitled “Next
Steps in the Implementation of the Prosecutorial Discretion Memorandum
and the August 18th Announcement on Immigration Enforcement Priorities”
also notes that a “comprehensive training program on the appropriate use
of the June 17, 2011 Prosecutorial Discretion Memorandum” was launched
on November 17 and includes “scenario-based training that emphasizes how
the Prosecutorial Discretion Memorandum should be utilized in order to
focus immigration enforcement resources on ICE priorities.” The document
states that the training is in addition to previous training held since
the Morton memorandum was released and that: ICE Director Morton, along
with other members of ICE’s senior leadership team, have traveled around
the country to discuss the importance of consistent application of
prosecutorial discretion. Over the last month, Director Morton and his
senior leadership have traveled to Los Angeles, Chicago, San Francisco,
San Diego, Miami, New York, and Newark to personally instruct
enforcement officers and attorneys on the appropriate use of this
policy. Over the next several weeks, Director Morton and other members
of the ICE senior leadership will travel to New Orleans and other
jurisdictions to conduct additional training. By January 13, all ICE
enforcement officers and attorneys nationwide will have completed
scenario based prosecutorial discretion training.
EOIR Statement
The EOIR issued a statement in connection with the ICE memorandum and
guidance. In the statement, the EOIR states that ICE attorneys will be
responsible for deciding whether to exercise prosecutorial discretion
and that the IJs will adjudicate motions brought in this respect,
including motions to administratively close or terminate cases, on a
case-by-case basis as they are filed.
