On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), released a memo setting forth the policy regarding the exercise of prosecutorial discretion by certain agency employees. This policy gives certain ICE agents the discretion to decide to what degree they will enforce immigration laws against a particular individual.

Prosecutorial discretion will be implemented in furtherance of the enforcement priorities of ICE, as set forth in a March 2, 2011 memo entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”.

According to this new directive, ICE will prioritize the use of its enforcement personnel, detention space, and removal resources to pursue the removal of aliens who pose a threat to national security, public safety, or the integrity of U.S. immigration laws. ICE officers, agents, and attorneys may consider any relevant factors in deciding whether to grant favorable discretion, including but not limited to: length of presence in the U.S., family ties and contributions to the community, physical or mental illness, serious medical conditions, criminal history, pursuit of education in the U.S., immigration history, and risk to national security or public safety. When considering an exercise of favorable discretion, ICE agents, officers, and attorneys are to base their decision on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.

ICE also specified certain categories of undocumented aliens that should prompt special care and consideration in the exercise of discretion. Examples of these categories include: Veterans and members of the U.S. Armed Forces, long-time lawful permanent residents, minors and elderly individuals, pregnant women, and victims of domestic violence or other serious crimes.

In an effort to further this enforcement policy, an interagency working group composed of ICE and Department of Justice staff will execute a case-by-case review of all individuals currently in removal proceedings to ensure that they meet ICE removal priorities. The group will monitor new cases as well, to ensure that cases continue to meet these priorities.

While those in removal proceedings or their counsel may request a review of their case for prosecutorial discretion, it is unclear at this time whether those requests will be granted before the case-by-case review by the interagency group is completed. Additionally, ICE attorneys are encouraged to consider using their discretion without waiting for a request from those in proceedings or from counsel.

While the exercise of prosecutorial discretion is not a right, and does not provide categorical relief for any particular group of aliens, it is a step in the direction of recognizing inconsistency in the current enforcement of U.S. immigration laws, and in allowing productive members of the undocumented community to avoid lengthy detentions and removal to countries they no longer call home.