Francisca Morales de Soto v. Eric Holder, Jr.

Filing

Filed order and amended opinion (RICHARD R. CLIFTON, SANDRA S. IKUTA and FREDERIC BLOCK). Amending Disposition Opinion DENIED The opinion filed on May 31, 2016, is hereby amended as follows: (SEE ORDER FOR FULL TEXT) With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Clifton and Ikuta have voted to deny the petition for rehearing en banc and Judge Block has so recommended. The Petition for Rehearing En Banc has been circulated to the full court, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for panel rehearing and rehearing en banc are DENIED. No further petition for rehearing may be filed. [10105618]

Case: 09-72122, 08/30/2016, ID: 10105618, DktEntry: 89-2, Page 1 of 15
Policy Number: 10075.1
FEA Number: 306·112·0026

Office ofthe Director

U.S. Department of Homeland Security
500 12th Street, SW
Washington, D.C. 20536

u.s. Immigratio~

and Customs
Enforcement
. June 17, 2011
MEMORANDUM FOR:

All Field Office Directors

All Special Agents in Charge

All Chief Counsel

FROM:
Director
SUBJECT:

Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens

Purpose
This memorandum provides U.S. Immigration and Customs Enforcement (ICE) personnel
guidance on the exercise·ofprosecutorial discretion to ensure that the agency's immigration
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enforcement resources are focused on the agency's enforcementupriorities. The memorandum
A gu
d on prosecutorial discretion and
also serves to make clear which agency employees rchive
may exercise
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what factors should be considered.
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This memorandum builds v. several existing memoranda related to prosecutorial discretion with
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special emphasis D the following:
• Sam Bernsen, Immigration and Naturalization Service (INS) General Counsel, Legal
Opinion Regarding Service Exercise of ProsecutoriaI Discretion (July 15,1976);
• Bo Cooper, INS General Counsel, INS Exercise ofProsecutorial Discretion (July 11,
2000);
• Doris Meissner, INS Commissioner, Exercising Prosecutorial Discretion (November 17,
2000);
• Bo Cooper, INS General Counsel, Motions to Reopen for Considerations of Adjustment
of Status (May 17, 2001);
• William J. Howard, Principal Legal Advisor, Prosecutorial Discretion (October 24,
2005);
• Julie L.Myers, Assistant Secretary, Prosecutorial and Custody Discretion (November 7,
2007);
. .
• John Morton, Director, Civil Immigration Enforcement Priorities for the Apprehension,
Detention, and Removal of Aliens (March 2, 2011 );and
• John Morton, Director, Prosecutorial Discretion: Certain Victims, Witnesses, and

Plaintiffs (June 17,2011).

www.ice.gov
iSi

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Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the .

Apprehension, Detention, and Removal ofAliens

The following memoranda related to prosecutorial discretion are rescinded:
• Johnny N; Williams, Executive Associate Commissioner (EAC) for Field Operations,
Supplemental Guidance Regarding Discretionary Referrals for Special Registration
(October 31, 2002); and
• Johnny N. Williams, EAC for Field Operations, Supplemental NSEERS Guidance for
Call-In Registrants (January 8,2003).
Background
One of ICE's central responsibilities is to enforce th~ nation's civil immigration laws in

coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and

. Immigration Services (USCIS). ICE, however, has limited resources to remove those
illegally in the United States. ICE must prioritize the use of its enforcement personnel,
detention space, and removal assets to ensure that the aliens it removes represent, as much as
reasonably possible, the agency's enforcement priorities, namely the promotion of national
security, border security, public safety, and the integrity ofthe immigration system. These
priorities are outlined in the ICE Civil Immigration Enforcement Priorities memorandum of
March 2,2011, which this memonmdum is intended to support.
Because the agency is confronted with more administrative violations than 016resources can
its
2
address, the agency must regularly exercise "prosecutorial discretion" 24, is to prioritize its
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efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with
d on
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enforcing a law to decide to what degree to enforcerthe law against a particular individual. ICE,
122
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like anyother law enforcement agency, 09- prosecutorial discretion and may exercise"it in the
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ordinary course of enforcement1.When ICE favorably exercises prosecutorial discretion, it
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essentially decides e S
D not
in a given case.
In the civil immigration enforcement context, the term "prosecutorial discretion" applies to a

broad range of discretionary enforcement decisions, including but not limited to the

following:

deciding to issue or cancel a notice of detainer;
deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
focusing enforcement resources on particular administrative violations or conduct;
deciding whom to stop, question, or arrest for an administrative violation;
deciding whom to detain or to release on bond, supervision, personal recognizance, or
other condition;
• seeking expedited removal or other forms of removal by means other thana formal
removal proceeding in immigration court;
•
•
•
•
•

I The .Meissner memorandum' s standard for prosecutorial discretion in a given case turned principally on whether a
substarItial federal interest was present. Under this memorandum,
starIdard is principally one of pursuing those
Cases that meet the agency's priorities for federal immigration enforcement generally.

the

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Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the
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• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or
other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider
joining in a motion to grant relief or a benefit.
Authorized ICE Personnel
Prosecutorial discretion in civil immigration enforcement matters is held by the Director2 and
may be exercised, with appropriate supervisory oversight, by the following ICE employees
according to their specific responsibilities and authorities:
• officers, agents, and their respective supervisors within Enforcement and Removal
Operations (ERO) who have authority to institute immigration removal proceedings or to
otherwise engage in civil immigration enforcement;
• officers, special agents, and their respective supervisors within Homeland Sect¢.ty
Investigations (HSI) who have authority to institute immigration removal proceedings or
to otherwise engage in civil immigration enforcement;
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• attorneys and their respective supervisors within e
iv the
arch
Advisor (OPLA) who have authority2122
to represent ICE in immigration removal
7
. 09proceedings before the Executive Office for Immigration Review (EOIR); and
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• the Director, the Deputy Director, and their senior staff.
ICE attorneys may exercise prosecutorial discretion in any immigration removal proceeding
before EOIR, on referral of the case from EOIR to the Attorney General, or during the pendency
,of an appeal to the federal courts, including a proceeding proposed or initiated by CBP or
USCIS. If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or
close a particular case or matter, the attorney should notify the relevant ERO, HSI, CBP, or
USCIS charging official about the decision. In the event there is a dispute between the charging
official and the ICE attorney regarding the attorney's decision to exercise prosecutorial
diScretion, the ICE Chief Counsel should attempt to resolve the dispute with the local supervisors
of the charging officiaL If local resolution is not possible, the matter should be elevated to the
Deputy Director of ICE for resolution..

Delegation of Authority to the Assistant Secretary, Immigration and Customs Enforcement, Delegation No. 7030.2
(November 13, 2004), delegating among other authorities, the authority to exercise prosecutorial discretion in
immigration enforcement matters (as defined in 8 U.S.C. § 110 1(a)(17».
.

2

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Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the

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Factors to Consider When Exercising Prosecutorial Discretion
When weighing whether an exercise of prosecutorial discretion may be warranted for a given
. alien, ICE officers, agents,and attorneys should consider all relevant factors, including, but not
limited to­
• the agency's civil immigration enforcement priorities;
• the person's length of presence in the United States, with particular consideration given
to presence while in lawful status;
• the circumstances ofthe person's arrival in the United States and the manner ofhis or her
entry,particularly if the alien came to the United States as a young child;
• the person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
• whether the person, or the person's immediate relative,has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
• the person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
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• whether the person poses a national security or public safetysconcern;
Augu
d onincluding family relationships;
ive
• the person's ties and contributions to the community,
arch
122condition~ in the country;
7
• the person's ties to the home country2and
. 09, No consideration given to minors andthe elderly;
• the person's age, withynch
particular
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• whether theeperson
D S
• whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative; ;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• Whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; .and
.
• whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the
Department ofLabor, or National Labor Relations Board, among others.
This list is not exhaustive and no one factor is.determinative. 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.

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Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the
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That said, there are certain classes of individuals that wat,Tant particular care. As was stated in
the Meissner memorandum on Exercising Prosecutorial Discretion, there are factors that can help
ICE officers, agents, and attorneys identify these cases so thatthey can be reviewed as early as
possible in the process.
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 of domestic violence; trafficking, or other serious crimes;
individuals who suffer from a serious mental or physical disability; and
individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance ofICE's enforcement priorities, 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;
016
serious felons, repeat offenders, or individuals with a lengthyt criminal record of any kind;
24, 2
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a clear
known gang members or other individuals who pose n Aug danger to public safety; and
do
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individuals with an egregious record of immigration violations, including those with a
arch
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record of illegal re-entry and those -who have engaged in immigration fraud.
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Timing
De S
While 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. As was more extensively elaborated on in the Howard Memorandum
on Prosecutorial Discretion, the universe of opportunities to exercise prosecutorial discretion is
large. It may be exercised at any stage of the proceedings. It is also preferable for ICE officers,
agents, and attorneys to consider prosecutorial discretion in cases without waiting for an alien or
alien's advocate or counsel to request a favorable exercise of discretion. Although affirmative
requests from an alien or his or her representative may prompt an evaluation of whether a
favorable exercise of discretion is appropriate in a given case, ICE officers, agents, and attorneys
should examine each such case independently to determine whether a favorable exercise of
discretion may be appropriate.
In cases where, based upon an officer's, agent's, or attorney's initial exaniination, an exercise of
prosecutorial discretion may be warranted but additional information would assist in reaching a
final decision, additional information may be requested from the alien or his or her
representative. Such requests should be made in conformity with ethics rules governing

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Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agency for the
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communication with represented individuals3 and should always emphasize that, while ICE may
be considering whether to exercise discretion in the case, there is no guarantee that the agency
will ultimately exercise discretion favorably. Responsive information from the alien or his or her
representative need not take any particular form and can range from a simple letter or e-mail
message to a memorandum with supporting attachments.
Disclaimer
As there is no right to the favorable exercise of discretion by the agency, nothing in this
memorandum should be construed to prohibit the apprehension, detention, or removal of any
alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel
to enforce federal immigration law. Similarly, this memorandum, which may be modified,
superseded, or rescinded at any time without notice, is not intended to, does not, and may not be
relied upon to create any right or benefit, substantive or procedural, enforceable at law by any
party in any administrative, civil, or criminal matter.

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questions concerning such rules, officers or agents should consult their local Office of Chief Counsel.

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