Immigration and Customs Enforcement (ICE) Director John Morton
recently issued two significant memoranda on the exercise of
prosecutorial discretion by enforcement officials which, if followed,
will result in a more humanitarian approach to those compelling cases
that deserve favorable treatment. Prosecutorial discretion is the
authority that an agency has to determine whether and how to enforce the
law with respect to a particular case. Like all other enforcement
agencies, ICE has prosecutorial discretion. In the ICE context,
prosecutorial discretion governs decision-making such as whom to arrest,
detain, grant parole as well as when and against whom to initiate
removal proceedings or conduct an investigation. When ICE favorably
exercises prosecutorial discretion, it essentially decides not to assert
the full scope of its enforcement authority in a case.
The first ICE memo provides broad instructions that establish the
agency's enforcement priorities. It also outlines who within ICE has the
power to make discretionary decisions and what factors should guide
The following categories were identified as ICE
enforcement effort priorities:
- non-citizens who pose a danger to
national security or a risk to public safety;
- recent illegal
- non-citizens who are fugitives or who otherwise
obstruct immigration controls.
The second ICE memo confirms that cases involving crime victims,
witnesses, and plaintiffs require a higher level of prosecutorial
discretion, and specifically states that it is generally against ICE policy to initiate removal proceedings against such individuals.
While these recent memoranda are a welcome addition to other agency
pronouncements on the subject, foreign nationals and their attorneys who
seek prosecutorial discretion have an important role to play in
requesting a specific type of favorable action in a case, and advocating
for the result.