Enforcement Priorities and Exercise of Prosecutorial Discretion

Following the President’s speech, Department of Homeland Security’s (DHS) Secretary Johnson issued memorandum to all DHS components, outlining the change in the Department’s deportation priorities and prosecutorial discretion policies.

The new memorandum of DHS Secretary Jeh Johnson named “ Policies for the Apprehension, Detention and Removal of Undocumented Immigrants ” places

  1. top deportation priority on national security threats, convicted felons, gang members, those illegal entrants apprehended at the border;
  2. the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered the U.S. after January 1, 2014; and
  3. the third-tier priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.

Under the revised policy guidance, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, who do not have serious immigration violations, and who were never convicted of a serious offence, will not be priorities for deportation and may be granted prosecutorial discretion to remain in the U.S. if they are currently in removal proceedings.

The memo supersedes many previous policies, including ICE memos issued by former ICE Director Morton, excluding a memo designed to protect victims of crimes and other vulnerable groups.

Please see the explanations below on the coverage of the new enforcement policy in more detail.

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Q: What is the intent behind the revised policy guidance?

A: With an estimated 11.5 million undocumented immigrants living in the U.S. and with the limited enforcement resources, DHS and its components cannot respond to all immigration violations in respect to all persons illegally present in the U.S. This is why DHS needs to have clear guidance on the exercise of prosecutorial discretion in selective removal of illegal immigrants.

The new policy is a logical step in redistributing the country’s enforcement resources and prioritizing removal of individuals who pose threats to the national security and public safety. Under the guidance, those individuals who are not considered threats to the society will be permitted to remain in the U.S.

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Q: What is Prosecutorial Discretion?

A: Prosecutorial Discretion is the power of the DHS to decide whether and to what degree to enforce the law in a particular case. Prosecutorial discretion applies to the decision on whether to institute removal proceedings, whom to stop, question and arrest, whom to detain or release, whether to settle, dismiss, appeal or join in a motion to close a removal case, and whether to grant deferred action, parole, or a stay of removal instead of pursuing a removal case.

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Q: When is prosecutorial discretion exercised?

A: Prosecutorial discretion can be exercised at any stage of an enforcement action but DHS will strive to prioritize its enforcement priorities at the early stages of the proceedings.

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Q: Who must follow the new policy guidance?

A: Agencies charged with enforcement of the immigration laws, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).

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Q: Does the change in enforcement priorities give any status to those individuals who are not considered to be enforcement priorities?

No. A favorable grant of prosecutorial discretion does not provide formal legal status or independent means to obtain permanent residency. It does, however, provide a temporary reprieve from deportation to those individuals who are not considered to be enforcement priorities.

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Q: Who is considered to be enforcement priority under the new guidance?


1) Priority 1 (threats to national security, border security and public safety)

Aliens described herein represent the highest priority for enforcement:

  1. aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
  2. aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
  3. aliens convicted of a gang offense or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
  4. aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and
  5. aliens convicted of an "aggravated felony," as defined by the Immigration and Nationality Act at the time of the conviction.

2) Priority 2 (misdemeanants and new immigration violators)

Aliens described herein represent the second-highest priority for apprehension and removal:

  1. aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien's immigration status, provided the offenses arise out of three separate incidents;
  2. aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
  3. aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
  4. aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.*

*NOTE: it is not quite clear what is meant by item (d). Under broad interpretation, anyone who has overstayed their visa for over 6 months or who have been deported and then reentered the U.S. could be considered to have “significantly abused the visa process.” While this guidance is intended to clarify and draw clear guidelines for enforcement priorities, it remains to be seen how DHS components will interpret this not-quite-clear language of the guidance.

3) Priority 3 (other immigration violations)

Priority 3 aliens are those who have been issued a final order of removal of removal on or after January 1, 2014. Aliens described in this priority represent the third and lowest priority for apprehension and removal.

Aliens classified under this priority should generally be removed unless they qualify for asylum or other form of relief under the laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the aliens should not be an enforcement priority.

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Q: If an illegal alien is classified under the enforcement priorities, does it mean that he/she will be automatically removed from the U.S.?

A: Not necessarily. Those illegal aliens who are identified as an enforcement priority, may still be able to remain in the U.S. if they qualify for asylum or another form of relief under current immigration laws. In addition, if a person falls under the enforcement priority, ICE or CBP may use their judgment in presence of compelling and exceptional factors that clearly indicate that the alien is not a threat to national security or public safety and should not therefore be an enforcement priority.

In other words, it may still be possible to convince ICE to exercise prosecutorial discretion to not deport an alien falling within one of the priorities if there certain compelling circumstances in favor of alien’s stay in the U.S.

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Q: What factors while DHS consider in judging whether a particular individual falling within an enforcement priority nevertheless warrants the exercise of prosecutorial discretion?
  • Extenuating circumstances involving the offense of conviction;
  • Extended length of time since the offense of conviction;
  • Length of time in the U.S.;
  • Military service;
  • Family or community ties n the U.S.;
  • Status as a victim, witness or plaintiff in civil or criminal proceedings;
  • Or compelling humanitarian factors, such as poor health, age, pregnancy, a young child, or a seriously ill relative.

These factors are not intended to be dispositive and will be considered thoroughly based on the totality of circumstances. The list is also not intended to be exhaustive.

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Q: What does the policy say in respect to illegal aliens who do not fall under the enforcement priorities?

A: The memo clearly prioritizes the government’s resources on removal of aliens who fall under one of the 3 categories above. However, the memo states that immigration officers may pursue removal of an alien who is not identified as a priority if in the judgment of ICE, such removal would serve an important federal interest.

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Q: Who can be detained under the new policy?

A: Detention resources will be focused on enforcement priorities or for aliens subject to mandatory detention.

Field Offices are instructed not to detain those aliens who fall in one of the categories below:

  • Aliens known to be suffering from serious physical or mental illness
  • Disabled
  • Elderly
  • Pregnant
  • Nursing
  • Primary caretakers of children or an inform person
  • Other aliens whose detention is otherwise not in the public interest.

Generally, in order to detain aliens in the categories above DHS officers must first obtain approval from the ICE Field Office Director.

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Q: Who does the guidance apply to?

A: The revised policy applies to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the U.S. as of the effective date.

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Q: When will the new guidance be effective?

A: The revised guidance will become effective on January 5, 2015.

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Q: How can you seek prosecutorial discretion based on the revised policy guidance?

A: The procedures in seeking the exercise of prosecutorial discretion under the revised policy guidance depend on the stage of removal proceedings.

    For individuals in ICE custody:
  • ICE will independently review its records to identify those aliens who pose a national security and public safety threats under the new guidance
  • If you believe you deserve a favorable exercise of prosecutorial discretion, follow the detainee-staff communication procedures in your facilities. These procedures are outlined in the orientation handbook you were provided when you were booked into ICE custody.
  • You may also call the ICE ERO Detention Repotting and Information Line, toll-free, at 1-888-351-4024 to make your request.
  • For individuals in proceedings before the Executive Office for Immigration Review:
  • If your administrative proceedings are pending before an immigration judge or the Board of Immigration Appeals but you believe that you do not fall under the enforcement priorities, ICE may agree to administratively close your case upon request.
  • You may submit your request to the ICE Office of the Principal Legal Advisor (OPLA). You or your attorney should submit your request for prosecutorial discretion to the mailbox of the OPLA filed office that is handling your case. OPLA will review your request and will provide a response.
  • For individuals with removal orders who are scheduled for removal and are not in ICE custody:
  • ICE will review the cases of individuals scheduled for removal.
  • If you have been scheduled for removal but you believe you merit prosecutorial discretion, you should proactively contact the ERO officer responsible for our case to discuss the matter.
  • You may also call the IC ERO Detention Reporting and Information Line at 1-888-351-4024. You may also contact a local OPLA office or you may call the USCIS National Customer Service Center at 1-800-375-5283.

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Q: Can you have ICE reconsider the decision on prosecutorial discretion?

A: You may contact the supervisor of the DHS unit that made the decision in your case to request further explanation of the decision or OPLA to request review of the decision in your case. However, it is important to note that there is no formal reconsideration process nor there is a right to the exercise of prosecutorial discretion. This is why it is extremely important to prepare a strong case from the start clearly showing why you merit prosecutorial discretion with the help of a qualified immigration attorney.

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Q: Where can I get the full text of the new policy?


End of Secure Communities Program and its Replacement with new Priority Enforcement Program

The Secure Communities program began in 2008 as a federal/state immigration enforcement partnership whereby fingerprints taken by police at arrest are automatically shared with DHS for possible immigration laws enforcement. Based on the information received, DHS can then lodge a “detainer,” which is a request from ICE that a state or local jail hold an individual beyond the point when the person would otherwise be released so that ICE can take the person into immigration custody. It normally prolonged that individual’s stay in jail for an additional two to five days. Detainers have been found unconstitutional in numerous courts across the country.

The Secure Communities program has been heavily criticized as it undermines the trust in police making people afraid to report crimes in fear of immigration enforcement against them. In addition, the program did not differentiate between those individuals who were only arrested and those convicted of a crime – all of them were placed in ICE’s removal line.

Under the new policy, Secure Communities program will be replaced by Priority Enforcement Program (PEP). The new program focuses efforts on apprehending individuals actually convicted of specified crimes, which will minimize the use of detainers.

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Q: How will ICE get information about aliens who fall under the enforcement priorities?

A: Under the new Priority Enforcement Program (PEP), ICE will rely on fingerprint data submitted to the FBI during bookings by state and local law enforcement agencies. Basically, the data about those individuals who end up in the custody of law enforcement authorities will be shared with ICE, and ICE will determine whether it is necessary to enforce the immigration laws against that particular individual in custody.

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Q: What are the differences between PEP program and Secure Communities?

A: DHS will retain its ability to gather fingerprint-based biometric data obtained by state and local law enforcement during bookings and submitted to the FBI. However, it will substantially alter what it does with this data.

  1. First, under PEP (unlike Secure Communities ), DHS typically will seek custody only of a person who has been convicted of certain offenses referenced in its enforcement priorities memo or who otherwise poses a risk to national security. See next Q&A.
  2. PEP also will employ new detainer policies. In general, ICE will no longer issue detainers. Instead, ICE will request that the state and local authority notify ICE of a person’s pending release. ICE will continue to issue detainers (i.e., request detention) “in special circumstances”— namely, where the person has a final order of removal, or there is sufficient probable cause that the person is removable.
  3. Finally, DHS will implement monitoring procedures to determine if “biased policing” is occurring under the PEP program. DHS designated the Office of Civil Rights and Civil Liberties to monitor state and local law-enforcement agencies participating in transfers of high-priority individuals to ICE.

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Q: Who will be considered for immigration custody under the new Priority Enforcement Program (PEP)?

A: The new policy states that except where someone presents a national security risk, enforcement actions through the new program will only be taken against individuals who are convicted of specifically enumerated crimes. Based on the data, ICE will seek to transfer to the immigration custody only the following individuals:

When an alien is convicted of an offense listed in:

Priority 1

  1. suspected terrorism or espionage, or danger to national security);
  2. intentional gang participants and those convicted of a gang-related offense);
  3. felony, or
  4. aggravated felony

Priority 2

  1. three of more misdemeanors not arising out of the same scheme, but not status or traffic- related offenses, or
  2. significant misdemeanor (such as domestic violence, burglary, firearms offenses, drug trafficking, and DUI).

of the November 20, 2014 Enforcement Priorities Memorandum or when the individual otherwise poses a danger to the national security.

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Q: Will ICE continue to use detainers to hold the individuals in custody pending immigration securities check?

A: ICE will discontinue the use of detainers, except in “ special circumstances ” and only where person is subject to a final order of removal or there is probable cause to find the person removable. Instead of requests to detain, ICE will request that a state or local law enforcement agency notify ICE of a pending release while the person is still in state or local custody.

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