Are You Here Illegally? ICE May Be Nice!

On June 17, 2011, U.S. Immigration and Customs Enforcement (ICE) issued a Memorandum to all ICE offices guiding them on exercising prosecutorial discretion in not taking enforcement action to remove from the United States certain individuals illegally in the U.S. and what factors to take into consideration.  ICE’s purpose in issuing the memo is to ensure that their limited resources are used wisely and in line with the agency’s priorities.

More than ever, it is important to consult with a competent immigration attorney to discuss your immigration situation, especially if you or a family member has been contacted by ICE, taken into custody, placed in deportation proceedings or have been ordered removed by an immigration judge.

Factors to Consider When Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given person, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to:

• the agency's civil immigration enforcement priorities;

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;

• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;

• the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;

• whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;

• the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;

• the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;

• whether the person poses a national security or public safety concern;

• the person's ties and contributions to the community, including family relationships;

• the person's ties to the home country and conditions in the country;

• the person's age, with particular consideration given to minors and the elderly;

• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;

• whether the person or the person's spouse is pregnant or nursing;

• whether the person or the person's spouse suffers from severe mental or physical illness;

• whether the person's nationality renders removal unlikely;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and

• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.