National Latina Network

Help with Legal Cases: Prosecutorial Discretion

There are several different ways a person could have a case in immigration court or come into contact with immigration law enforcement, including:

• The denial of an application for immigration status
• Involvement in criminal activity
• Entry into the US without proper documentation (at airports or a land border)
• Presence in the US without proper documentation

Undocumented immigrants often fear that if they have any interaction with the immigration system, they will immediately be deported.  Immigrant survivors of domestic and sexual violence may have a heightened fear of this due to misinformation or threats by the aggressors or people misinformed about the special routes to status for victims of domestic or sexual violence.  For this reason, it is important to inform survivors that, rather than simply being removed from the US:

• There is a court process allowing them to pursue status based on being a victim of domestic or sexual violence.
• In some situations involving “extraordinary circumstances,” that process may be expedited. “Extraordinary circumstances” include severe financial loss, extreme emergency, humanitarian reason, national interest, and US Customs and Immigration Services’ error or “compelling interest.”^[1]
• Attorneys and advocates may be able to assist survivors who have a case in immigration court or are in immigration detention.

Prosecutorial Discretion

a.    Prosecutorial Discretion Generally

Immigration and Customs Enforcement (ICE) does not have the capacity to enforce immigration laws against the millions of undocumented individuals in the United States.  For this reason, ICE can make decisions about what types of cases are and are not priorities (i.e., giving ICE “discretion” over which cases to “prosecute” or continue with).  In November 2014, ICE amended its guidelines to reflect their enforcement priorities. ^[2]  Under this new guidance, ICE has three enforcement priorities:

§  Priority One: threats to national security, border security and public safety. 

§  Priority Two: misdemeanor offenders and new immigration violators.

§  Priority Three: other immigration violations.

b.    Prosecutorial Discretion for Survivors

The November 2014 ICE Guidance^[6] should be read in conjunction with other specific guidance regarding immigrant victims of crimes.  In particular, in June of 2011, the Director of ICE issued guidance with specific instructions for ICE to exercise its prosecutorial discretion when the individual may be a victim of domestic violence, human trafficking or other serious crimes; may be a witness in criminal matters; or may be pursuing civil actions related to protecting their rights (e.g., union organizing, housing, or discrimination disputes.).^[7] The memo instructs ICE to exercise all appropriate discretion, on a case-by-case basis, when making and enforcing decisions including but not limited to:

• Issuing or cancelling a Notice of a Detainer
• Issuing, serving, or cancelling a Notice to Appear (NTA) to start proceedings in immigration court;
• Determining whom to stop, question, or arrest for an immigration violation
• Determining whom to detain or to release on bond, supervision, or personal recognizance;
• Dismissing or settling a case in immigration court
• Granting deferred action or parole
• Executing a removal order
• Joining on a Motion to Reopen

Advocates should use this memo in their interactions with ICE as a reminder that survivors of domestic and sexual assault should be afforded special consideration when determining whether an NTA should be issued, settling or dismissing a case in immigration court, or when someone should be released from immigration detention.  ICE may not always agree, especially if the victim has a history of criminal or immigration violations, but it is an important tool for advocates to be aware of and use in cases where it may apply.

c.     Prosecutorial Discretion for Parents

Another important tool for survivors who are parents is the ICE Parental Interest Directive.[8]  This memo instructs ICE to give special consideration (including exercising prosecutorial discretion with regard to the decision to detain) to parents who are primary caretakers of children, involved in family law litigation, and whose minor children are US citizens or legal permanent residents.  The memo also instructs ICE that should a detainee identify as a parent, efforts should made to permit that person to remain close to family; and to allow parents with pending family law matters to participate in those proceedings.  This memo is a very useful tool for survivors who are in detention and are parents of minor children.