ICE’s Prosecutorial Discretion Roller Coaster

On his first day in office, President Biden issued Executive Order 13993, “Revision of Civil Immigration Enforcement Policies and Priorities.”  86 Fed. Reg. 7051 (Jan. 25, 2021).  President Biden’s Executive Order revoked a previous executive order by President Trump and called for adherence “to due process of law as we safeguard the dignity and well-being of all families and communities.” The order also announced that the Biden Administration “will reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities.”

In subsequent DHS and ICE memos, the agencies established presumed enforcement priorities for ICE which were meant to guide discretionary enforcement decisions by ICE officers and attorneys.

On August 19, Judge Tipton of the Southern District of Texas preliminarily enjoined the portions of memos including the new enforcement priorities.  Texas v. United States, No. 21-00016 (S.D. Texas Aug. 19, 2021). Judge Tipton’s preliminary injunction found that the enjoined sections contravene congressional mandates in the detention statutes at 8 U.S.C. §§ 1226(c) and 1231(a)(2).  Prosecutorial discretion decisions not dealing with detention should not have been affected by the injunction.  But despite the analysis being limited to purported violation of the detention statutes, the order itself is phrased so broadly that it appears to enjoin DHS from implementing the new enforcement priorities, even in decisions unrelated to detention.

In the immediate wake of the injunction, ICE attorneys informed immigration lawyers that prosecutorial discretion decisions were “on hold” due to the litigation.  But then on August 23, Judge Tipton issued a seven day stay on his injunction and then the Office of the Principal Advisor put out guidance clarifying that consideration of prosecutorial discretion would continue, though without reference or reliance on the enjoined priorities.

Instead, ICE attorneys considering exercising prosecutorial discretion are instructed to consider the following factors:

Mitigating Factors

• Length of residence in the United States;
• Service in the U.S. military;
• Family or community ties in the United States;
• Circumstances of arrival in the United States and the manner of their entry; prior immigration history;
• Current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances);
• Work history in the United States;
• Pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings;
• Whether the individual has potential immigration relief available;
• Contributions to the community; and
• Any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.

Aggravating Factors 

• Criminal history (taking into account the extensiveness, seriousness, and recency of the criminal activity as well as any indicia of rehabilitation, extenuating circumstances involving the offense or conviction, the time and length of sentence imposed and served, the age of the noncitizen at the time the crime was committed, the length of time since the offense or conviction occurred, and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety);
• Participation in persecution or other human rights violations;
• Extensiveness and seriousness of prior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE); and
• Fraud or material misrepresentation.

ICE attorneys are instructed to consider prosecutorial discretion on a case-by-case basis considering the totality of the circumstances.  Different forms of prosecutorial discretion include agreeing to continuances, stipulating to bond, joining in noncitizen motions to the immigration court, stipulating to relief, declining to appeal, and agreeing to dismiss cases pursuant to 8 C.F.R. § 1239.2(c).

After a wild week where it first appeared that prosecutorial discretion would be curtailed or eliminated, it is now clear that requests for prosecutorial discretion will be considered by ICE attorneys.

If you would like to schedule a consultation on whether a request for prosecutorial discretion could be advantageous in your immigration case or the case of a loved one, please contact our office at 303-297-9171.