Immigration enforcement officers are supposed to enforce immigration laws. But in enforcing the law, they have choices to make along the way, including who to detain and who to place in removal proceedings. According to Immigration and Customs Enforcement (ICE) having discretion allows them to allocate resources as needed, ideally focusing on those who pose a threat to public safety or national security.
Prosecutorial discretion is not a new concept, and it is constantly being redefined by policies, guides, and public pressure from the community. ICE’s current implementation of prosecutorial discretion is based on a June 2011 memorandum from ICE Director John Morton. Morton told immigration officers to focus on deporting “high priority” people and to set aside cases against “low priority” people.
There are two main documents that ICE officers use as a guide to determine who falls into these categories, both written by Director Morton in June 2011 (these are included in the Appendix):
It is important to remember that there are no guarantees when it comes to prosecutorial discretion. Every decision made is “discretionary.”
For an illustrated popular-education guide to prosecutorial discretion, click here
Who is considered “low priority”?
The following is a list of factors that, according to the memoranda and guidelines set by ICE, can help categorize someone as “low priority.” Please note that discretion is not supposed to be based on one single factor, but rather the totality of the situation. A person may be considered low priority because s/he:
For NDLON, it is important to pay special attention to the last two points, about people involved in disputes regarding “civil rights or liberties violations” and those involved in other activities “related to civil or other rights.” Many of the people that are involved in our network of organizations are people who are fighting wage theft by their employers, demanding better housing conditions, advocating for a change in immigration laws, and in general advocating for civil rights. These types of activities should be included in any request for prosecutorial discretion.
Who is considered “high priority”?
According to DHS, there are three categories of non-citizens who should be considered priorities for deportation: people with criminal histories, people with a history of “egregious” immigration violations, and people who recently crossed the border (“recent” is usually described as within in the last three years). The prosecutorial discretion memos provide a more detailed list of “high priority” factors. According to those memos, a person may be high priority because s/he:
The prosecutorial discretion policy provides a new tool for immigrants in deportation proceedings and their allies to stop individual deportations. Although we cannot change the basic facts of a case or the immigration history of a person, community advocacy can:
Since prosecutorial discretion is supposed to look at the totality of the circumstances, it might be useful to think of a case as being on a balance. On one side of the balance are the negative factors that make someone “high priority,” while on the other side are the positive factors that make someone “low priority.” It is in the cases where the scale initially seems to weigh heavier on the side that leads to deportation, that community advocacy helps the most.
Although there is no guarantee, each letter of support from a legislator, each newspaper article, each call from a community member to ICE, and each action taken by those advocating against a person’s deportation adds more weight to the positive side of the balance. The goal is to make that side so heavy that ICE must decide to stop the person’s deportation.
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NotOneMoreDeportation.com is a campaign made of individuals, organizations, artists, and allies to expose, confront, and overcome unjust immigration laws.
As the immigration debate continues, #Not1More enters the discussion from the place that touches people in concrete ways and can offer tangible relief. By collectively challenging unfair deportations and unjust policy through organizing, art, legislation, and action, we aim to reverse criminalization, build migrant power, and create immigration policies based on principles of inclusion.
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