Transcript Prosecutorial Discretion

PROSECUTORIAL DISCRETION
CHANGES – 2011 /2012
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Prosecutorial Discretion - core principal in
law enforcement, hesitantly used in
immigration system
Since 2010- issue rose to prominence in
immigration
Resources and priorities Issue – backlogs in
courts must be reduced by reasonable
enforcement
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The authority of a law enforcement to decide
whether and to what degree to enforce the
law
◦ criminal cases - Prosecutors decide whether to
bring charges, what charges are appropriate,
whether to offer a plea
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◦ In immigration cases (civil)under
DHS:
 ICE exercises discretion on:
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stops,
arrests,
detention,
whether to initiate proceedings,
whether to proceed with cases,
whether to execute removal orders, etc.
 CIS exercises discretion on:
 whether to initiate proceedings
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Establishes high-level joint DHS/DOJ
taskforce to:
◦ Review approx. 300,000 cases pending before IJ,
BIA and federal courts
◦ Ensure that new removal cases conform to DHS
enforcement priorities
◦ Issue guidance on the announcement
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Low priority cases will be administratively
closed
While initially announced that such cases
would be eligible to apply for EAD, now
backtracked – need independent basis
◦ 8 C.F.R. Section 274.12(c)(14) for deferred action,
or if have other pending application that provides
for EAD eligibility (such as adjustment)
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DHS will several months to review all
pending cases
ICE attorneys to review cases on their docket
“prior to the expenditure of resources”
Request for prosecutorial discretion can be
made at time of hearing
Pilots operated in Baltimore and Denver,
finished Jan. 13, 2012 (5,000 and 7,000
cases reviewed respectively)
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June 17, 2010 Morton Memo
Enforcement priorities include:
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National Security
Public Safety
Border Security
Repeat Immigration Violators
Recent Border Crossers
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June 17, 2011 ICE Director John Morton
issued 2 memos
1st Memo details
◦ ICE enforcement priorities
◦ Cases appropriate for limited or no enforcement
consequences
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2nd Memo specifies
◦ Victims of crimes, witnesses and civil rights
litigants deserve special protection
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Nov. 17, 2011 : ICE OPLA – Case by Case
Review of Incoming/Pending cases - includes
1. Cases on master docket
2. Cases w/NTAs not yet filed w/EOIR
3. Non-detained cases w/merits hearings
scheduled by 6/17/12
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Begin review nationally
make national plan after assessing the two
pilot sites in Baltimore/Denver
Advises attorneys to review cases for PD
factors in June 17 memo
Draft an operating rule for review (SOP)
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Low priority or positive factors given “prompt
and particular care”
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Veterans, members of US armed forces
Long time lawful permanent residents
Minors and elderly individuals
Present in the US since childhood
Pregnant or nursing women
Victims of domestic violence, trafficking
Serious mental or physical condition
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While stating that it incorporates the criteria
of the June 17 ICE memo, it also says that
high priority removal is directed at:
Those who entered illegally or violated status
in the last 3 years;
Prior removals;
Egregious immigration violators;
Fraud cases;
Gang members or others who are threat to
public safety; national security risks;
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High priority removal:
Criminal convictions for
Felony or multiple misdemeanors,
Illegal entry or fraud, or
Misdemeanors for violence, threats or
assault; DUIs; sexual abuse; flight from scene
of accident; drug trafficking; or other public
safety threats.
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Low priority enforcement/case by case
evaluation if:
Armed forces history;
Child in US more than 5 yrs and is in school
or completed HS;
Student of higher educ who came to US under
age 16, in US more than 5 yrs, HS grad;
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Low priority enforcement:
Victim of domestic violence or crime in US;
LPR ten years or more and has single minor
conviction for a non-violent offense;
Person who suffers from serious mental or
physical condition requiring treatment in
detention;
Person with long term US presence with
immediate family who is USC, and compelling
ties/contributions here.
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Instructed to evaluate on case-by-case basis,
apply totality of the circumstances;
No one factor determinative
All cases also reviewed for national security
and public safety concerns
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1 – all non detained cases in the two pilot
sites of Baltimore/Denver courts
2 – incoming cases to ICE for evaluation of
whether to proceed with NTA
Plan being developed on how to implement
existing caseload review nation-wide
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Trial attorneys review cases for PD factors
Recommend admin closure
Write up proposed motion
Send to Respondent for response
File with court if agrees
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12/5/11 – 1/13/12
Court closed – cases reset to 2014
Attorneys and respondents could submit
materials in support of PD to dedicated email
at ICE, Ofc of Chief Counsel
ICE contact with atty in writing with proposed
Joint Motion to Admin Close
Pro Se – ICE sends motion and allows
response at next hearing
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Review existing cases to determine if any fall
within the areas specified in the
announcement or memo
Cases currently in removal proceedings
◦ Request admin closure : so far this is the only
option ICE has been offering to respondents
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Request specific and appropriate form of
relief
Outline why discretion appropriate
Highlight positive factors
Demonstrate no adverse factors
Address problem areas
Make request in writing
Provide supporting documents
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Decision must be in writing
An administrative closure is not lawful
residency
Note: only represented cases provided a
channel to supplement requests for PD with
documents via dedicated email box
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Who will have Notice to Appear issued against
them to initiate removal proceedings?
November 7, 2012 USCIS Memo – Revised
Guidance for Issuance of Notices to Appear
(NTA) – superseded prior guidance from 2006
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Will issue NTAs for:
Termination of Conditional Residence;
Termination of refugee, asylum, or
withholding
Asylum referrals
Positive credible fear findings
And – certain NACARA 202 and 203 cases,
HRIFA denials, TPS denials, I-360 denials.
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Will issue NTAs for:
Cases where fraud is part of the record of
findings
Egregious public safety cases
Certain naturalization denials if
◦ Criminal issues allow natz eligibility but removable
under Sec. 237; or
◦ Inadmissible at time of entry
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Egregious public safety cases (EPS)
Cases where inadmissible or deportable for a
criminal offense not on EPS list
Cases with NSEERS violations
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Offices set up Naturalization review panels to
review NTA issues and set up a referral
process to ICE within 30 days of the memo
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Inconsistency of review criteria
Public education, especially for the pro se
Development of nation-wide plan
Coordination between USCIS, CBP and ICE
More options besides administrative closure
are sought (termination, stipulation to relief,
etc.)
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CBP not on same page with ICE criteria
EADs – no avenue unless have independent
basis
Deferred Action not being considered by ICE
for administrative closure
Detained dockets need review
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AILA’s resources, which are excellent - List
at www.aila.org/pd with links to govt memos,
guidance, and practice advisories
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