ICE’s Prosecutorial Discretion Roller Coaster | Joseph & Hall P.C.

On his first day in workplace, President Biden issued Govt Order 13993, “Revision of Civil Immigration Enforcement Insurance policies and Priorities.”  86 Fed. Reg. 7051 (Jan. 25, 2021).  President Biden’s Govt Order revoked a earlier govt order by President Trump and known as for adherence “to due technique of regulation as we safeguard the dignity and well-being of all households and communities.” The order additionally introduced that the Biden Administration “will reset the insurance policies and practices for imposing civil immigration legal guidelines to align enforcement with these values and priorities.”

In subsequent DHS and ICE memos, the businesses established presumed enforcement priorities for ICE which have been meant to information discretionary enforcement selections by ICE officers and attorneys.

On August 19, Choose Tipton of the Southern District of Texas preliminarily enjoined the parts of memos together with the brand new enforcement priorities.  Texas v. United States, No. 21-00016 (S.D. Texas Aug. 19, 2021). Choose Tipton’s preliminary injunction discovered that the enjoined sections contravene congressional mandates within the detention statutes at 8 U.S.C. §§ 1226(c) and 1231(a)(2).  Prosecutorial discretion selections not coping with detention shouldn’t have been affected by the injunction.  However regardless of the evaluation being restricted to purported violation of the detention statutes, the order itself is phrased so broadly that it seems to enjoin DHS from implementing the brand new enforcement priorities, even in selections unrelated to detention.

Within the instant wake of the injunction, ICE attorneys knowledgeable immigration attorneys that prosecutorial discretion selections have been “on maintain” as a result of litigation.  However then on August 23, Choose Tipton issued a seven day keep on his injunction after which the Workplace of the Principal Advisor put out steering clarifying that consideration of prosecutorial discretion would proceed, although with out reference or reliance on the enjoined priorities.

As an alternative, ICE attorneys contemplating exercising prosecutorial discretion are instructed to think about the next components:

Mitigating Elements

• Size of residence in the US;
• Service within the U.S. navy;
• Household or group ties in the US;
• Circumstances of arrival in the US and the style of their entry; prior immigration historical past;
• Present immigration standing (the place lawful everlasting resident (LPR) standing typically warrants better consideration, however to not the exclusion of different noncitizens relying on the totality of the circumstances);
• Work historical past in the US;
• Pursuit or completion of schooling in the US; standing as a sufferer, witness, or plaintiff in civil or felony proceedings;
• Whether or not the person has potential immigration aid obtainable;
• Contributions to the group; and
• Any compelling humanitarian components, together with poor well being, age, being pregnant, standing as a baby, or standing as a main caregiver of a critically ailing relative in the US.

Aggravating Elements

• Prison historical past (taking into consideration the extensiveness, seriousness, and recency of the felony exercise in addition to any indicia of rehabilitation, extenuating circumstances involving the offense or conviction, the time and size of sentence imposed and served, the age of the noncitizen on the time the crime was dedicated, the size of time for the reason that offense or conviction occurred, and whether or not subsequent felony exercise helps a dedication that the noncitizen poses a risk to public security);
• Participation in persecution or different human rights violations;
• Extensiveness and seriousness of prior immigration violations (e.g., noncompliance with circumstances of launch, prior unlawful entries, removals by ICE); and
• Fraud or materials misrepresentation.

ICE attorneys are instructed to think about prosecutorial discretion on a case-by-case foundation contemplating the totality of the circumstances.  Completely different types of prosecutorial discretion embrace agreeing to continuances, stipulating to bond, becoming a member of in noncitizen motions to the immigration courtroom, stipulating to aid, declining to enchantment, and agreeing to dismiss instances pursuant to eight C.F.R. § 1239.2(c).

After a wild week the place it first appeared that prosecutorial discretion could be curtailed or eradicated, it’s now clear that requests for prosecutorial discretion will likely be thought of by ICE attorneys.

If you need to schedule a session on whether or not a request for prosecutorial discretion might be advantageous in your immigration case or the case of a liked one, please contact our workplace at 303-297-9171.