Prosecutional Discretion
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Prosecutional Discretion

  • Director of U.S. Immigration and Customs Enforcement (ICE) John Morton released a June 17, 2011, memorandum intended to provide additional guidance to ICE personnel on exercising prosecutorial discretion. In this context, favorable prosecutorial discretion refers to the government’s ability to choose not to enforce certain penalty provisions within the immigration laws against a particular person, thereby providing some relief in deserving, sympathetic cases
  • Director Morton points out that the agency does not have the required resources to pursue every administrative immigration violation

The term prosecutorial discretion can encompass a wide variety of actions or temporary inaction, depending upon the context

Favorable and Unfavorable Discretionary Factors for ICE to Consider

The Morton memorandum gives detailed guidance regarding the factors ICE officers should consider, both positively and negatively, in making discretionary prosecutorial decisions. For example, the memorandum counsels that the following persons should be considered particularly favorably:

  • veterans and members of the U.S. armed forces;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • individuals present in the United States since childhood;
  • pregnant or nursing women;
  • victims of domestic violence, trafficking, or other serious crimes;
  • individuals who suffer from serious mental or physical disabilities; and
  • individuals with serious health conditions.

Conversely, the memorandum states, some individuals must be considered in a particularly negative light. Among these are:

  • individuals who pose a clear risk to national security;
  • serious felons, repeat offenders or individuals with lengthy criminal records of any kind;
  • known gang members or other individuals who pose a clear danger to public safety;
  • individuals with egregious records of immigration violations, including those with records of illegal reentry; and
  • those who have engaged in immigration fraud.

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