This week, the Department of Homeland Security (DHS) directed ICE attorneys to begin a review process of current immigration cases pending before immigration courts in order to close or dismiss those cases warranting prosecutorial discretion. The attorneys also received additional guidance on how to apply discretion in certain low priority cases. At the same time, DHS announced new training modules for all ICE field agents on prosecutorial discretion. The package of initiatives are a follow up to ICE Director John Morton’s June 17th memo which describes how, when, and why ICE officials should exercise prosecutorial discretion in immigration cases.
By reviewing these pending and incoming immigration cases—a process slated to last two months—DHS hopes to relieve some of the backlog and stop diverting resources from low priority cases and focus more attention on deporting high-priority criminals. There are currently 300,000 current cases pending before immigration courts.
To help immigration officers determine who is a low or high enforcement priority, DHS laid out a set of criteria in another memo. Those who are a high priority include national security risks, convicted felons, gang members, those guilty of immigration fraud, or those who have an egregious record of immigration violations. Those who are a low priority include:
- those in good standing with or veterans of the U.S. Coast Guard or Armed Forces, including spouses or children
- children who have been in the U.S. for more than five years and who are in school or have completed high school
- those who came to the U.S. before the age of 16, have been here for five years, completed high school and is pursing college
- those over the age of 65 who have been in the U.S. for more than 10 years
- victims of domestic abuse, human trafficking or other serious crimes
- LPRs (green card holders) who have been in the U.S. for 10 years or more and has committed a single, minor, non-violent offense
- those with serious mental conditions that require significant medical or detention resources
- those with long-term presence in the U.S., has an immediate U.S. citizen family member and has established compelling ties or made compelling contributions to the U.S.
In determining which cases should receive prosecutorial discretion, DHS requires attorneys to make a case-by-case determination of eligibility. In addition, no case can be closed or dismissed without first being vetted national security risks and must be approved by a supervising official at CBP, USCIS or ICE.
Although John Morton announced the contours of the discretion policy nearly six months ago, a recent survey by the American Immigration Lawyers Association and American Immigration Council recently found that similar immigration cases received different treatment in different parts of the country. In fact, many requests which seemed to squarely fit within the guidelines for prosecutorial discretion were summarily denied.
Hopefully, the new guidance and procedures will remind ICE field offices that the application of prosecutorial discretion in low-priority cases goes a long way in helping DHS make sure their resources are focused on their stated enforcement priorities—dangerous criminals who pose a that to public safety and national security.
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