ICE Memo on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities

Memorandum by Director John Morton issuing guidance to ICE personnel on the exercise of prosecutorial discretion. The memo also sets forth which agency employees may exercise prosecutorial discretion and what factors should be considered. ICE 6/17/11

Here is a June 17, 2011 memo from Morton on on "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens."   The memo emphasizes that "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."

Below are certain classes of individuals that, according to the Morton memo, warrant particular care.

"The following positive factors should prompt particular care and consideration:
• veterans and members ofthe 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 ofdomestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions."
The memo further states that, in exercising prosecutorial discretion, "the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:
• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and
• individuals with an egregious record ofimmigration violations, including those with a record ofillegal re-entry and those who have engaged in immigration fraud."

Importantly, the memo states that, "[w]hile ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding."