#Not1More Deportation

2. Prosecutorial Discretion

What is prosecutorial discretion?

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):

  1. “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” and
  2. Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs.”

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

Low and High Priority Factors in Prosecutorial Discretion

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:

Low Priority Criteria

  • Has lived in the U.S. more than 5 years and arrived as a child;
  • Has lived in the U.S. more than 10 years and arrived over the age of 16;
  • Has some lawful presence in the U.S. (for example, spent time in the U.S. with a valid visa);
  • Came to the U.S. as a young child (under age of 16);
  • Is a young child or an elderly person;
  • Is over the age of 65 and has been in the U.S. more than 10 years;
  • Has been a lawful permanent resident (LPR) for 10 years, with no more than one misdemeanor;
  • Is a veteran or a member of the armed forces;
  • Is pregnant or nursing, or has a partner that is pregnant or nursing;
  • Has a severe physical or mental disability or health condition;
  • Has completed education in the U.S. (especially high school or college);
  • Has an immediate relative who served in military;
  • Has children that are U.S. citizens;
  • Has a U.S. citizen or LPR spouse;
  • Has a spouse with severe mental or physical illness;
  • Has relatives that are U.S. citizens or LPRs;
  • Has little or no connections to home country;
  • Fears returning to home country;
  • Is the primary caretaker for a person with disabilities, elderly, minor, or seriously ill relative;
  • Has other significant ties to the community (church, organization participation, business owner, home owner);
  • Has cooperated with federal agencies;
  • Has “compelling ties” and has made “compelling contributions” to the U.S.;
  • Is a victim of domestic violence, human trafficking, or other serious or violent crime (examples of serious crimes include robbery, physical attack, etc.);
  • Is a collaborating witness involved in a pending criminal investigation or prosecution;
  • Is likely to be granted status or relief (for example, because he/she is eligible for a visa.)
  • Is involved in a dispute regarding a violation of his or her civil or labor rights;
  • Is involved in an activity related to civil or other rights (for example, union organizing, complaining to authorities about employment discrimination or housing conditions)

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:

High-priority criteria

  • Has multiple misdemeanor convictions (3 or more);
  • Has a misdemeanor conviction involving violence, threats, assault, sexual abuse or exploitation;
  • Has a misdemeanor conviction involving DUI of alcohol or drugs, or flight from the scene of an accident;
  • Has a conviction for drug distribution or trafficking;
  • Has been convicted of one felony (or more);
  • Returned to the U.S. after having been ordered removed
  • Agreed to a voluntary departure and did not leave, or came back after leaving;
  • Committed immigration fraud (for example, by using fake papers);
  • Could “easily” re-adjust to living in home country;
  • Poses a threat to public safety or national security;
  • Has a “lengthy” criminal record of any kind;
  • Has gang affiliations or human trafficking connections

Opportunities for Organizing

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:

  1. Highlight the factors that should make a person “low priority” for deportation by communicating with ICE about the case and raising public awareness;
  2. Help the person in deportation proceedings show “significant ties and contributions to the community” by gathering signatures and letters of support from elected officials, community leaders, and allies;
  3. Help the person highlight their contributions to civil rights advocacy, especially where the person is an active member of a community organization;
  4. Encourage individuals to make calls and send e-mails to ICE to show ICE that the community is watching, and that the person has community support.

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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