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Prosecutorial Discretion is Back – Ibrahim Law Office’s Analysis of ICE’s New Enforcement Priority Memo

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Prosecutorial Discretion is Back – Ibrahim Law Office’s Analysis of ICE’s New Enforcement Priority Memo

Prosecutorial Discretion is Back – Ibrahim Law Office’s Analysis of ICE’s New Enforcement Priority Memo

Immigration and Customs Enforcement (ICE)  released an updated interim guidance in May regarding arrests, detention, charging and deportation of non-citizens . The memo includes guidance on “prosecutorial discretion,” a type of deportation relief that may help non-citizens who otherwise would not have a defense against their removal from the United States.

According to ICE, “prosecutorial discretion is an indispensable feature of any functioning legal system” which, when appropriate, can “preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department's mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.” ICE officers and attorneys now have the authority to exercise discretion in accordance with considerations “at all stages of the enforcement process and at the earliest moment practicable…”

What Are ICE’s Priorities Now?

In its Feb. interim guidance, ICE implemented three priorities for arrest, detention, charging for deportation, and removal:

  1. Noncitizens deemed national security threats,

  2. Noncitizens deemed border security threats, and

  3. Noncitizens deemed public safety threats.

ICE is required to decide on a case-by-case basis whether to exercise prosecutorial discretion, considering the three concrete categories and weighing both aggravating and mitigating circumstances.

ICE’s Prosecutorial Discretion

ICE attorney policy is now “to exercise prosecutorial discretion in a manner that furthers the security of the United States and the faithful and just execution of the immigration laws, consistent with DHS's and ICE's enforcement and removal priorities.” Although not a formal program or immigration benefit, prosecutorial discretion is still a useful option for some non-citizens in removal proceedings when the non-citizen has no legal defense in his case, or if their case is a difficult one to win. ICE has issued a non-exhaustive list of “mitigating” factors that show the non-citizen’s case should not end in a deportation, and “aggravating” factors that hurt the individual’s chance at obtaining prosecutorial discretion.

Relevant mitigating factors may include:

  • a noncitizen's length of residence in the United States;

  • service in the U.S. military;

  • family or community ties in the United States;

  • circumstances of arrival in the United States and the manner of their entry;

  • prior immigration history;

  • current immigration status

  • work history in the United States;

  • pursuit or completion of education in the United States;

  • status as a victim, witness, or plaintiff in civil or criminal proceedings;

  • whether the individual has potential immigration relief available;

  • contributions to the community;

  • and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.

Relevant aggravating factors may include one’scriminal history,participation in persecution or other human rights violations, prior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE) and  fraud or material misrepresentation.

What Prosecutorial Discretion Can Do in Removal Proceedings

ICE attorneys now have the authority to entertain a non-citizen’s request that a case be continued or terminated. The memorandum gives noncitizens the opportunity to ask for more time in removal proceedings or request their case’s termination.

The new ICE guidelines limit the use of “administrative closure,” in which a case is closed but could be reopened at a later time, as a form of prosecutorial discretion “in certain jurisdictions for certain types of cases.”  Still, Ibrahim Law Office believes that certain immigration courts and certain ICE attorney’s offices may entertain requests for administrative closure on a case-by-case basis.

How to Request Prosecutorial Discretion

The memo states the proper procedure for non-citizens to request prosecutorial discretion. Such requests must be made directly to ICE attorneys and nobody else.


If you or a loved one is currently in removal proceedings and interested in learning more about ICE’s new policies and prosecutorial discretion, contact Ibrahim Law Office for a consultation today.

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