advocacy with immigrant survivors toolkit

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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. 

This includes individuals who are engaging in or suspected of terrorism, convicted of a gang-related offenses, felonies, and other serious crimes.  It also includes individuals apprehended at the border or ports of entry who are attempting to enter the country without proper documentation, which may include individuals who are seeking asylee status because they are fleeing domestic and sexual violence back home.[3]

 

§  Priority Two: misdemeanor offenders and new immigration violators.

  This category includes those who entered or re-entered the US unlawfully on or before January 1, 2014; and those who were convicted of multiple misdemeanors or “significant misdemeanors,” which can include crimes of domestic violence.  The issue of conviction is particularly problematic for immigrant survivors when aggressors use the criminal justice system against them, or when lack of language access or legal help results in a survivor’s conviction. The November 2014 ICE Guidance does mention, however, that careful consideration should be given to whether the convicted survivor was also the victim of domestic violence; if so, this should be a mitigating factor (a “mitigating factor” is any fact or circumstance that lessens the severity of or responsibility for a criminal act) in determining whether someone falls in this category.[4]

 

§  Priority Three: other immigration violations.

This category includes those who have been issued a final order of removal on or after January 1, 2014. This is the lowest priority area and the November 2014 ICE Guidance does mention that those in this category “should generally be removed unless they qualify for asylum or another form of relief under our laws or unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.”[5]

 

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.



[1]Szabo, K.E., Molina, R., Yang, E. & Orloff, L.E. (2014). Improve immigrant victim safety, gain protection from deportation: Practice tip – file now, get RFE-d later. Washington, DC: National Immigrant Women’s Advocacy Project of the American University Washington College of Law.

[2]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[3]Individuals entering the country without documentation and who express a fear of returning to their country may request an interview to determine whether they may proceed with the asylum process (see “Protecting the credible fear and asylum parole processes” by the National Immigrant Justice Center). In addition, in August 2014, the Board of Immigration Appeals established that “married women in Guatemala who are unable to leave their relationship” can be a recognized social group for purposes of establishing asylum (Matter of A-R-C-G).  For more information on gender-based asylum claims, see the Center for Gender and Refugee Studies.

[4]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[5]Ibid.

[6]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[7]Memorandum on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffsfrom John Morton, Director of ICEto Field Office Directors, Special Agents, and Chief Counsel (June 17, 2011).

[8]Memorandum from John Sandweg, Acting Director, US Immigration and Customs Enforcement, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities(August 23, 2013).