1. PROSECUTORIAL DISCRETION CHANGES – 2011 /2012 1

2.  Prosecutorial Discretion - core principal in law enforcement, hesitantly used in immigration system  Since 2010- issue rose to prominence in immigration  Resources and priorities Issue – backlogs in courts must be reduced by reasonable enforcement 2

3.  The authority of a law enforcement to decide whether and to what degree to enforce the law ◦ criminal cases - Prosecutors decide whether to bring charges, what charges are appropriate, whether to offer a plea 3

4. ◦ In immigration cases (civil)under DHS:  ICE exercises discretion on:  stops,  arrests,  detention,  whether to initiate proceedings,  whether to proceed with cases,  whether to execute removal orders, etc.  CIS exercises discretion on:  whether to initiate proceedings 4

5.  Establishes high-level joint DHS/DOJ taskforce to: ◦ Review approx. 300,000 cases pending before IJ, BIA and federal courts ◦ Ensure that new removal cases conform to DHS enforcement priorities ◦ Issue guidance on the announcement 5

6.  Low priority cases will be administratively closed  While initially announced that such cases would be eligible to apply for EAD, now backtracked – need independent basis ◦ 8 C.F.R. Section 274.12(c)(14) for deferred action, or if have other pending application that provides for EAD eligibility (such as adjustment) 6

7.  DHS will several months to review all pending cases  ICE attorneys to review cases on their docket “prior to the expenditure of resources”  Request for prosecutorial discretion can be made at time of hearing  Pilots operated in Baltimore and Denver, finished Jan. 13, 2012 (5,000 and 7,000 cases reviewed respectively) 7

8.  June 17, 2010 Morton Memo  Enforcement priorities include: ◦ National Security ◦ Public Safety ◦ Border Security ◦ Repeat Immigration Violators ◦ Recent Border Crossers 8

9.  June 17, 2011 ICE Director John Morton issued 2 memos  1 st Memo details ◦ ICE enforcement priorities ◦ Cases appropriate for limited or no enforcement consequences  2 nd Memo specifies ◦ Victims of crimes, witnesses and civil rights litigants deserve special protection 9

10.  Nov. 17, 2011 : ICE OPLA – Case by Case Review of Incoming/Pending cases - includes 1. Cases on master docket 2. Cases w/NTAs not yet filed w/EOIR 3. Non-detained cases w/merits hearings scheduled by 6/17/12 10

11.  Begin review nationally  make national plan after assessing the two pilot sites in Baltimore/Denver  Advises attorneys to review cases for PD factors in June 17 memo  Draft an operating rule for review (SOP) 11

12.  Low priority or positive factors given “prompt and particular care” ◦ Veterans, members of US armed forces ◦ Long time lawful permanent residents ◦ Minors and elderly individuals ◦ Present in the US since childhood ◦ Pregnant or nursing women ◦ Victims of domestic violence, trafficking ◦ Serious mental or physical condition 12

13.  While stating that it incorporates the criteria of the June 17 ICE memo, it also says that high priority removal is directed at:  Those who entered illegally or violated status in the last 3 years;  Prior removals;  Egregious immigration violators;  Fraud cases;  Gang members or others who are threat to public safety; national security risks; 13

14.  High priority removal:  Criminal convictions for  Felony or multiple misdemeanors,  Illegal entry or fraud, or  Misdemeanors for violence, threats or assault; DUIs; sexual abuse; flight from scene of accident; drug trafficking; or other public safety threats. 14

15.  Low priority enforcement/case by case evaluation if:  Armed forces history;  Child in US more than 5 yrs and is in school or completed HS;  Student of higher educ who came to US under age 16, in US more than 5 yrs, HS grad; 15

16.  Low priority enforcement:  Victim of domestic violence or crime in US;  LPR ten years or more and has single minor conviction for a non-violent offense;  Person who suffers from serious mental or physical condition requiring treatment in detention;  Person with long term US presence with immediate family who is USC, and compelling ties/contributions here. 16

17.  Instructed to evaluate on case-by-case basis, apply totality of the circumstances;  No one factor determinative  All cases also reviewed for national security and public safety concerns 17

18.  1 – all non detained cases in the two pilot sites of Baltimore/Denver courts  2 – incoming cases to ICE for evaluation of whether to proceed with NTA  Plan being developed on how to implement existing caseload review nation-wide 18

19.  Trial attorneys review cases for PD factors  Recommend admin closure  Write up proposed motion  Send to Respondent for response  File with court if agrees 19

20.  12/5/11 – 1/13/12  Court closed – cases reset to 2014  Attorneys and respondents could submit materials in support of PD to dedicated email at ICE, Ofc of Chief Counsel  ICE contact with atty in writing with proposed Joint Motion to Admin Close  Pro Se – ICE sends motion and allows response at next hearing 20

21.  Review existing cases to determine if any fall within the areas specified in the announcement or memo  Cases currently in removal proceedings ◦ Request admin closure : so far this is the only option ICE has been offering to respondents 21

22.  Request specific and appropriate form of relief  Outline why discretion appropriate  Highlight positive factors  Demonstrate no adverse factors  Address problem areas  Make request in writing  Provide supporting documents 22

23.  Decision must be in writing  An administrative closure is not lawful residency  Note: only represented cases provided a channel to supplement requests for PD with documents via dedicated email box 23

24.  Who will have Notice to Appear issued against them to initiate removal proceedings?  November 7, 2012 USCIS Memo – Revised Guidance for Issuance of Notices to Appear (NTA) – superseded prior guidance from 2006 24

25.  Will issue NTAs for:  Termination of Conditional Residence;  Termination of refugee, asylum, or withholding  Asylum referrals  Positive credible fear findings  And – certain NACARA 202 and 203 cases, HRIFA denials, TPS denials, I-360 denials. 25

26.  Will issue NTAs for:  Cases where fraud is part of the record of findings  Egregious public safety cases  Certain naturalization denials if ◦ Criminal issues allow natz eligibility but removable under Sec. 237; or ◦ Inadmissible at time of entry 26

27.  Egregious public safety cases (EPS)  Cases where inadmissible or deportable for a criminal offense not on EPS list  Cases with NSEERS violations 27

28.  Offices set up Naturalization review panels to review NTA issues and set up a referral process to ICE within 30 days of the memo 28

29.  Inconsistency of review criteria  Public education, especially for the pro se  Development of nation-wide plan  Coordination between USCIS, CBP and ICE  More options besides administrative closure are sought (termination, stipulation to relief, etc.) 29

30.  CBP not on same page with ICE criteria  EADs – no avenue unless have independent basis  Deferred Action not being considered by ICE for administrative closure  Detained dockets need review 30

31.  AILA’s resources, which are excellent - List at www.aila.org/pd with links to govt memos, guidance, and practice advisorieswww.aila.org/pd 31