Government Attorney’s Discretion in Handling Deportation Cases Expanded

Government attorneys' authority to exercise discretion in handling unauthorized foreigners' cases has been recently expanded.  In a recent memo by Immigration and Customs Enforcement (ICE) Director, John Morton, law enforcement personnel as well as government prosecutors who represent ICE in immigration proceedings are explicitly authorized to use their own judgment in deciding which cases should be prosecuted given the limited resources of the government agency.

Previously, ICE attorneys also had broad authority to make prosecutorial decisions, mostly in consultation with their client - ICE's law enforcement officers.  The recent Morton memo explicitedly gave ICE attorneys the authority to use prosecutorial discretion to make decisions on detention and release, initiation of deportation proceedings, choosing particular violations to prosecute, whom to stop, question or arrest for administrative violation; removal and expedited removal of unauthorized foreigners, etc.  Director Morton's decision makes a lot of sense since ICE attorneys are responsible for reviewing the legal sufficiency of each deportation case, and for representing the government before the Immigration Court and Board of Immigration Appeals.  They are also the individuals who usually get requests for dismissing and reopening of cases.

The memo listed some factors to consider when exercising discretion including: the agency's civil immigration enforcement priorities, foreigner's length of residence in the U.S., manner and age of entry, present age and health conditions, education in the U.S., military services, criminal history, community ties, home country's conditions, existence of U.S. citizens or legal resident relatives, likelihood of getting temporary or permanent status (e.g., petition by a relative), cooperation with law enforcement authorities, etc.  However, some foreigners would likely not be given favorable discretion including individuals who pose a clear risk to national security; who are serious felons, repeat offenders; who have a lengthy criminal record of any kind; who are known gang members or other individuals who pose a clear danger to public safety; and who have an egregious record of immigration violations (e.g., illegal re-entry and immigration fraud).

The memo identified some groups of individuals that require prompt particular care and consideration, including veterans and members of the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the U.S. since childhood; pregnant or nursing women, victims of domestic violence, trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; and individuals with serious health conditions.

The memo also reminds immigration enforcement officers and attorneys that discretion can be exercised in different ways and manner.  Up until now, exercise of prosecutorial discretion has not been consistent between different ICE offices.  This memo provides some clear and objective factors that will be extremely helpful to ICE field attorneys and their supervisors when deciding which cases to prosecute.  There will still be elements of subjectivity involved. For example, it is unclear how many positive factors must a foreigner possesses to deserve favorable discretion. Each case will be decided based on its individual merits. But most certainly, this memo represents a giant step towards the right direction for the immigration agency.