EAH Immigration Blog

In the summer of 2011, U.S. Immigration and Customs Enforcement (ICE) issued guidelines on exercising prosecutorial discretion designed to focus its enforcement priorities on individuals who pose a threat to public safety, are recent border crossers, or repeatedly violate immigration laws. In a recent memo, ICE provides guidance to the field, clarifying how the existing guidelines relate to family relationships involving long-term, same-sex partners. Specifically, ICE has reminded its officers that one of the factors relevant to an assessment to decline to prosecute a case is the person’s ties and contributions to the community, including family relationships. And “family relationships,” it clarified, include two adults who are in a committed, long-term, same-sex relationship — specifically, it said, relationships in which the individuals:

• are each other’s sole domestic partner and intend to remain so indefinitely;

• are not in a marital or other domestic relationship with anyone else; and

• typically maintain a common residence and share financial obligations and assets.

While “family relationships” is only one of many factors that will be considered, this guidance is welcome news. Apparently, the guidance was prompted by a letter from 54 members of Congress requesting that DHS Secretary Napolitano issue written field guidance explicitly stating the policy that same-sex family ties are a positive factor to be considered for the exercise of prosecutorial discretion.

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 as well as what factors should guide that decision-making. The following categories were identified as ICE enforcement effort priorities:  (1) noncitizens who pose a danger to national security or a risk to public safety; (2) recent illegal entrants; and (3) noncitizens 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.