PROSECUTORIAL DISCRETION CHANGES – 2011 /2012

1. PROSECUTORIAL DISCRETION CHANGES – 2011 /2012

2. What is Prosecutorial Discretion? • Prosecutorial Discretion - core principal in law enforcement, hesitantly used in immigration system • Since 2010- issue rose to prominence in immigration • Resources and priorities Issue – backlogs in courts must be reduced by reasonable enforcement

3. PD Definition • The authority of a law enforcement to decide whether and to what degree to enforce the law • criminal cases - Prosecutors decide whether to bring charges, what charges are appropriate, whether to offer a plea

4. Prosecutorial Discretion • In immigration cases (civil)under DHS: • ICE exercises discretion on: • stops, • arrests, • detention, • whether to initiate proceedings, • whether to proceed with cases, • whether to execute removal orders, etc. • CIS exercises discretion on: • whether to initiate proceedings

5. August 2011 Announcement by President Obama and DHS • Establishes high-level joint DHS/DOJ taskforce to: • Review approx. 300,000 cases pending before IJ, BIA and federal courts • Ensure that new removal cases conform to DHS enforcement priorities • Issue guidance on the announcement

6. Priority in Enforcement • Low priority cases will be administratively closed • While initially announced that such cases would be eligible to apply for EAD, now backtracked – need independent basis • 8 C.F.R. Section 274.12(c)(14) for deferred action, or if have other pending application that provides for EAD eligibility (such as adjustment)

7. DHS Review • DHS will several months to review all pending cases • ICE attorneys to review cases on their docket “prior to the expenditure of resources” • Request for prosecutorial discretion can be made at time of hearing • Pilots operated in Baltimore and Denver, finished Jan. 13, 2012 (5,000 and 7,000 cases reviewed respectively)

8. ICE Guidance • June 17, 2010 Morton Memo • Enforcement priorities include: • National Security • Public Safety • Border Security • Repeat Immigration Violators • Recent Border Crossers

9. ICE Memos • June 17, 2011 ICE Director John Morton issued 2 memos • 1st Memo details • ICE enforcement priorities • Cases appropriate for limited or no enforcement consequences • 2nd Memo specifies • Victims of crimes, witnesses and civil rights litigants deserve special protection

10. More ICE Memos • Nov. 17, 2011 : ICE OPLA – Case by Case Review of Incoming/Pending cases - includes • Cases on master docket • Cases w/NTAs not yet filed w/EOIR • Non-detained cases w/merits hearings scheduled by 6/17/12

11. Nov. 17, 2011 ICE Memo • Begin review nationally • make national plan after assessing the two pilot sites in Baltimore/Denver • Advises attorneys to review cases for PD factors in June 17 memo • Draft an operating rule for review (SOP)

12. Factors to consider: (ICE) • Low priority or positive factors given “prompt and particular care” • Veterans, members of US armed forces • Long time lawful permanent residents • Minors and elderly individuals • Present in the US since childhood • Pregnant or nursing women • Victims of domestic violence, trafficking • Serious mental or physical condition

13. Guidance to ICE Attorneys • While stating that it incorporates the criteria of the June 17 ICE memo, it also says that high priority removal is directed at: • Those who entered illegally or violated status in the last 3 years; • Prior removals; • Egregious immigration violators; • Fraud cases; • Gang members or others who are threat to public safety; national security risks;

14. Guidance to ICE Attorneys • High priority removal: • Criminal convictions for • Felony or multiple misdemeanors, • Illegal entry or fraud, or • Misdemeanors for violence, threats or assault; DUIs; sexual abuse; flight from scene of accident; drug trafficking; or other public safety threats.

15. Guidance to ICE Attorneys • Low priority enforcement/case by case evaluation if: • Armed forces history; • Child in US more than 5 yrs and is in school or completed HS; • Student of higher educ who came to US under age 16, in US more than 5 yrs, HS grad;

16. Guidance to ICE attorneys • Low priority enforcement: • Victim of domestic violence or crime in US; • LPR ten years or more and has single minor conviction for a non-violent offense; • Person who suffers from serious mental or physical condition requiring treatment in detention; • Person with long term US presence with immediate family who is USC, and compelling ties/contributions here.

17. Guidance to ICE attorneys • Instructed to evaluate on case-by-case basis, apply totality of the circumstances; • No one factor determinative • All cases also reviewed for national security and public safety concerns

18. 2 Reviews • 1 – all non detained cases in the two pilot sites of Baltimore/Denver courts • 2 – incoming cases to ICE for evaluation of whether to proceed with NTA • Plan being developed on how to implement existing caseload review nation-wide

19. Case Review – pilot sites • Trial attorneys review cases for PD factors • Recommend admin closure • Write up proposed motion • Send to Respondent for response • File with court if agrees

20. Pilot Programs Baltimore/Denver • 12/5/11 – 1/13/12 • Court closed – cases reset to 2014 • Attorneys and respondents could submit materials in support of PD to dedicated email at ICE, Ofc of Chief Counsel • ICE contact with atty in writing with proposed Joint Motion to Admin Close • Pro Se – ICE sends motion and allows response at next hearing

21. PD – Pilot sites • Review existing cases to determine if any fall within the areas specified in the announcement or memo • Cases currently in removal proceedings • Request admin closure : so far this is the only option ICE has been offering to respondents

22. Include in Request • Request specific and appropriate form of relief • Outline why discretion appropriate • Highlight positive factors • Demonstrate no adverse factors • Address problem areas • Make request in writing • Provide supporting documents

23. After Request for PD made: • Decision must be in writing • An administrative closure is not lawful residency • Note: only represented cases provided a channel to supplement requests for PD with documents via dedicated email box

24. PD Guidance by USCIS • Who will have Notice to Appear issued against them to initiate removal proceedings? • November 7, 2012 USCIS Memo – Revised Guidance for Issuance of Notices to Appear (NTA) – superseded prior guidance from 2006

25. PD by USCIS • Will issue NTAs for: • Termination of Conditional Residence; • Termination of refugee, asylum, or withholding • Asylum referrals • Positive credible fear findings • And – certain NACARA 202 and 203 cases, HRIFA denials, TPS denials, I-360 denials.

26. PD by USCIS • Will issue NTAs for: • Cases where fraud is part of the record of findings • Egregious public safety cases • Certain naturalization denials if • Criminal issues allow natz eligibility but removable under Sec. 237; or • Inadmissible at time of entry

27. USCIS Will Refer to ICE • Egregious public safety cases (EPS) • Cases where inadmissible or deportable for a criminal offense not on EPS list • Cases with NSEERS violations

28. USCIS Guidance • Offices set up Naturalization review panels to review NTA issues and set up a referral process to ICE within 30 days of the memo

29. Ongoing Issues • Inconsistency of review criteria • Public education, especially for the pro se • Development of nation-wide plan • Coordination between USCIS, CBP and ICE • More options besides administrative closure are sought (termination, stipulation to relief, etc.)

30. Ongoing issues with PD • CBP not on same page with ICE criteria • EADs – no avenue unless have independent basis • Deferred Action not being considered by ICE for administrative closure • Detained dockets need review

31. Resources • AILA’s resources, which are excellent - List at www.aila.org/pd with links to govt memos, guidance, and practice advisories