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Prosecutorial Discretion: Focusing On Enforcement Priorities

The U.S. Immigration & Customs Enforcement Agency, ICE’s function is to execute immigration law. The Department of Homeland Security (DHS) on June 17, 2011 ruled that its limited resources (ICE is an agency of DHS) prevent it from enforcing the detention and removal of all illegal aliens. In future ICE is to arrest and detain only illegal aliens who threaten national security and/or public safety. This federal moratorium will halt the indiscriminate arrests of illegal aliens.  It should end the dark night terror of arrests that over the past two years have been a scourge to the undocumented. The practice of ICE to provide States with immigration information about detainees of states who have arrested aliens for minor crimes such as driving without a license or subway toll jumping or drinking liquor in public should cease. ICE will no longer be arresting these undocumented aliens.

In cases such as petitions for Cancellation of Removal, the DHS will not commence removal proceedings. Prosecutorial discretion will require restraint in detaining aliens and for starting Removal Proceedings.  Persons already detained will be generously entertained for release and/or for termination of proceedings already started. ICE may grant these detainees release on their own recognizance, or a form of supervision deemed appropriate, or if ICE determines that national security and/or public order require removal, then to try to accomplish this without starting Court proceedings.

Some of the tools ICE has been ordered to consider are:
a) dismissing or terminating removal proceedings;
b) granting indefinite deferred action, granting parole or for allowing Stays of Removal;
c) granting voluntary departure;
d) joining in Motions to Reopen Removal Orders

In a larger sense, ICE will be detaining and arresting far fewer illegals, and in those cases already pending, many will now be dismissed or terminated, suspended or closed. The national panic over a visit of ICE to one’s home early in the morning should be lifted. ICE has been instructed to help persons who have been in the U.S. for a long period of time, especially for those who came as young children.  Persons who have had educational achievements such as graduation from high school, or are going or have gone to college or graduate school, are to be given special consideration. Factors in favor of the undocumented to be given special attention include those who have:

a) immediate relatives in the military;
b) minors or the elderly;
c) U.S. citizens or persons who are immediate relatives such as spouses, children or parents;
d) caretakers of persons with mental or physical disabilities;
e) a claim to asylum or have been a victim of domestic violence or human trafficking or of a crime especially for those who have cooperated with federal, state or local law enforcement authorities.
This memo issued by the DHS may be an augury of an intent by the federal government to institute immigration reform.

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