DHS prosecutorial discretion enforcement policies and practices.

CLINIC recently posted a Prosecutorial Discretion Toolkit on its website that contains the government documents, articles, sample letters and motions, practice advisories and other materials to help nonprofit attorneys, accredited representatives and advocates understand DHS prosecutorial discretion enforcement policies and practices.

What is prosecutorial discretion and how can it benefit my client? Over the past year, DHS and Whitehouse statements and memos have announced new immigration enforcement policies and priorities. This effort to implement new enforcement standards through the exercise of prosecutorial discretion includes the review of 300,000 cases at all stages of the removal process. While this review commenced in late 2011, it remains on-going.

The purpose of this Toolkit is to help advocates understand various components of prosecutorial discretion —- who can benefit, what is the process, and what advocates can do to assist clients both before and after the issuance of the Notice to Appear. While the answers to some of these questions are still unclear, the government documents, articles, sample letters and motions, and other materials contained in this Toolkit will help advocates understand DHS prosecutorial discretion enforcement policies and practices.

GOVERNMENT DOCUMENTS:

1.    Press Release, EOIR, EOIR Statement Regarding Prosecutorial Discretion (November 17, 2011)

2.    ICE, Next Steps in the Implementation of the Prosecutorial Discretion Memorandum and the August 18th  Announcement on Immigration Enforcement Priorities (November 17, 2011)

3.    ICE, Guidance to ICE Attorneys Reviewing the CBP, USCIS, and ICE Cases Before the Executive office for Immigration Review (November 17, 2011)

4.    Peter Vincent, ICE, Case-by-Case Review of Incoming and Certain Pending Cases (November 17, 2011)

5.    USCIS, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (November 7, 2011)

6.    ICE, Frequently Asked Questions on the Administration’s Announcement Regarding a New Process to Further Focus Immigration Enforcement Resources on High Priority Cases

7.    DHS, Background: Implementing an Effective Immigration Enforcement Strategy (2011)

8.    Janet Napolitano, Letter to Senator Dick Durbin Announcing Case-by-Case Review of Individuals in Removal Proceedings (August 18, 2011)

9.    Cecilia Munoz, Immigration Update: Maximizing Public Safety and Better Focusing Resources, The White House Blog (August 18, 2011)

10.    ICE, Memo on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011)

11.    ICE, Memo on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011)

12.    ICE, Memo on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (March 2, 2011)

13.    ICE, Tool Kit for Prosecutors, (April 2011) (pgs 4-8 FAQ on Deferred Action and Stays of Removal)

ARTICLES AND REPORTS:

14.    Transactional Records Access Clearinghouse (TRAC), Share of Immigration Cases Ending in Deportation Orders Hits Record Low (February 7, 2012)
15.    Shoba Sivaprasad Wadhia, Prosecutorial Discretion in Immigration Agencies: A Year in Review (January 6, 2012)
16.    Shoba Sivaprasad Wadhia, Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion (December 2010)

PRACTICE ADVISORIES:

17.    Legal Action Center and Alexsa Alonzo, DHS Review of Low Priority Cases for Prosecutorial Discretion (February 13, 2012)
18.    AILA DC Chapter, Practice Advisory Prosecutorial Discretion in Baltimore District Practice (December 22, 2011)
19.    AILA Colorado Chapter, Implementation of the Prosecutorial Discretion Review Pilot Program in Denver, Colorado (December 13, 2011)
20.    Legal Action Center and Alexsa Alonzo, DHS Review of Low Priority Cases for Prosecutorial Discretion (December 12, 2011)
21.    AILA DC Chapter, ICE Baltimore Pilot Program: What You Need to Know in Order to Advise Clients (December 4, 2011)
22.    Mary Kenney, Legal Action Center, Prosecutorial Discretion: How to Advocate for Your Client (June 24, 2011)

SAMPLE REQUESTS AND MOTIONS:

23.    Catholic Charities, Request to Baltimore OCC to Exercise Prosecutorial Discretion and Join in Motion to Terminate (2012)
24.    Catholic Charities, Request to Fairfax ICE ERO to Withdraw Detainer Against U Visa Applicant (February 1, 2012)
25.    Joint Motion to Administratively Close Proceedings
26.    Catholic Charities, Request to Baltimore OCC to Exercise Prosecutorial Discretion and Join in Motion to Reopen (April 6, 2011)
27.    Sample Request for Release and Prosecutorial Discretion
28.    How to Obtain a Refund of a U.S. Immigration Bond
29.    Intake Sheet for Prosecutorial Discretion Morton Memo Factors
30.    The Life Of An Immigration Case And What Form Of PD To Request At Each Stage

BIA DECISION AND CIRCUIT COURT ORDERS:

31.    Matter of Bavakan AVETISYAN, 25 I&N Dec. 688 (BIA 2012).
BIA decision held IJ and BIA authorized to administratively close proceedings even if a party opposes the administrative closure.  The BIA articulated standards for administrative closure.

32.    Agustin v. Holder, No. 09-72910, Order (9th Cir. February 6, 2012);
Rodriguez v. Holder, No. 06-74444, Order (9th Cir. February 6, 2012);
Mata-Fasardo v. Holder, No. 10-71869, Order (9th Cir. February 6, 2012);
Pocasangre v. Holder, No. 10-70629, Order (9th Cir. February 6, 2012);
Middleton v. Holder, No. 09-74038, Order (9th Cir. February 6, 2012).
These cases involve petitions for panel rehearing.  The Ninth Circuit Court of Appeals ordered the government to advise the court whether in light of the June 17, 2011 and November 17, 2011 ICE memos on prosecutorial discretion whether the government intends to exercise prosecutorial discretion in these cases and, if so, the effect of such discretion on the cases before the court.

INFORMATION FROM THE FIELD ON PILOT PROGRAMS:

33.    Questions and Answers from AILA/USCIS Denver Liaison Meeting on Prosecutorial Discretion (December 7, 2011)

34.    Posting by Anna Gallagher and Sandra Grossman, ICE Baltimore Liaison Co-Chairs (2012)

35.    AILA Synthesis of Chapter Reports on Prosecutorial Discretion Implementation (January 31, 2012)

DENVER AND BALTIMORE PILOT PROGRAMS EOIR INFORMATION:

36.    EOIR Denver Notice of Rescheduled Hearing based on the Prosecutorial Discretion Pilot Project

37.    EOIR Baltimore Notice to Individuals whose Cases Are to Be Rescheduled Pursuant to the Prosecutorial Discretion Pilot Project

NEWSPAPER ARTICLES:

38.    Julia Preston, NY Times, In Deportation Policy Test, 1 in 6 Offered Reprieve (January 19, 2012)