Expansion of Prosecutorial Discretion and Closure of “Low Priority” Cases by The Department of Homeland Security

The Department of Homeland Security (“DHS”) last year announced the creation of a joint committee with the Department of Justice (“DOJ”) to review the nearly 300,000 removal/deportation cases currently pending in Immigration Court, the Board of Immigration Appeals and the Federal Circuit Courts.

Immigrations and Customs Enforcement (“ICE”), which is under DHS, has limited resources to remove the hundreds of thousands of persons here illegally in the United States.  In memos released by ICE, the government has stated that it will focus its immigration enforcement resources in cases involving national security, public safety, border security, and the integrity of the immigration system.

The new joint committee will review the positive and negative equities of each of the nearly 300,000 cases in removal proceedings to identify those that are of “low priority.”  The guidelines for determining “low priority” cases were outlined last June in a memo issued by ICE Director John Morton and include persons who:

  • Are not criminals and have been in the country since childhood (DREAM Act students)
  • Have strong community ties;
  • Are veterans or relatives of persons in the armed services;
  • Are caregivers;
  • Have serious health issues;
  • Are victims of crime; or
  • Otherwise have a strong basis for remaining in the United States.

This review process is expected to take several months.  Once an immigration case is closed, the individual would remain in the United States and be eligible to apply for work authorization. DHS announced that ICE attorneys will also review every case scheduled for a hearing in order to identify cases that meet the above criteria.

DHS has said that individuals who are not high priority targets will have the opportunity to request prosecutorial discretion.     

“Prosecutorial discretion” is a law enforcement agency’s authority to decide whether and to what extent to enforce the law in any given case.  In the immigration context, prosecutorial discretion may be a way for immigrants with pending cases and no other forms of relief to avoid removal/deportation.  DHS/ICE can exercise prosecutorial discretion in a number of ways.  For example, ICE can:

Decide not to issue or to rescind a Notice to Appear (the charging document that starts removal proceedings)

  • Release an individual from detention;
  • Grant deferred action, parole, or stay a final order of removal;
  • Issue or cancel a detainer;
  • Focus enforcement resources on particular administrative violations or conduct;
  • Settle or dismiss a removal proceeding; and
  • Grant of administrative relief, including parole.

Can cases involving criminal convictions be considered “low priority”?

I delayed reporting DHS’ announcements because I wanted to report, based on first-hand experience, what expansion of “prosecutorial discretion” actually meant.  The memos from DHS do not automatically disqualify any particular case, however, a respondent’s criminal history, including prior arrests, convictions, and outstanding warrants are negative equities that will be considered.

I filed a formal request with ICE asking for favorable exercise of prosecutorial discretion for my client.  The client, Mr. Z, had been ordered deported from the United States in 1992 based on a conviction for possession with intent to distribute a controlled substance.  He posted bond during deportation proceedings in immigration court and remained free during the appeals process before the Board of Immigration Appeals (“BIA”).  The BIA dismissed his appeal in 1999, finding that the immigration judge correctly found Mr. Z deportable.                    Mr. Z, who did not receive notice of the dismissal from the BIA in 1999, remained a free man until he was arrested by ICE last year.  Because Mr. Z’s case had already been adjudicated, he could not go before an immigration judge and request relief.  ICE could immediately deport him.

I employed two different strategies to keep Mr. Z here in the United States, one of which was to formally ask ICE for favorable exercise of prosecutorial discretion.  I thought that Mr. Z was a wonderful candidate for favorable exercise of prosecutorial discretion because during the almost 20 years since being ordered deported, he had never again been arrested, had married a US citizen, had two US citizen children, owned property, was gainfully employed, regularly paid taxes, and had a supportive network of family and friends, including a US citizen nephew who saw combat overseas.  Furthermore, if Mr. Z were deported, his US citizen wife and US citizen mother would suffer hardship.

After waiting several weeks, I received a letter from the Atlanta Field Office Director denying my request.   The Director cited the serious nature of Mr. Z.’s conviction as the basis for the denial.  Importantly, Mr. Z. had maintained throughout the deportation proceedings that he was never informed that entering a plea in the criminal case could cause him to be deported.  This omission has been found to be a sufficient basis for reversing a criminal conviction.

Although I am concerned about DHS’ ability to successfully implement the guidelines it announced, I applaud the Department and the Obama Administration for this step forward.

If you or someone you know could possibly benefit from a favorable exercise of prosecutorial discretion based on what I outlined above, it is important that you speak with an immigration attorney immediately.

Furthermore, it is advisable that you be proactive and consider steps that you may be able to take to avoid being placed in removal proceedings in the first instant.  There may be something that you can do to avoid being placed in removal proceedings even if you have a felony conviction.  Consult an immigration attorney who handles deportation cases.

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