Prosecutorial Discretion – It isn’t that hard

Author: on 11/10/2011


Written by: Palma Yanni, AILA Media-Advocacy Committee

On November 10, 2011, the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) issued a report chronicling the implementation of Immigration and Customs Enforcement (ICE) Director John Morton’s June 17, 2011, guidance on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.” The report is remarkable. In a large majority of offices, ICE personnel stated either that the guidance didn’t change anything, or that it would not be implemented until further guidance is received.

The memorandum “provides U.S. Immigration and Customs Enforcement (ICE) personnel guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. The memorandum also serves to make clear which agency employees may exercise prosecutorial discretion and what factors should be considered.” The memorandum lists nineteen factors to consider, and instructs that decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities. Certain positive and negative factors are highlighted for particular consideration.

How then can ICE personnel almost universally claim they need more guidance?

Every cop on every beat exercises prosecutorial discretion daily. Anyone who has received a warning instead of a ticket for rolling through a stop sign or speeding has benefited from prosecutorial discretion. Recently in my county, a Sheriff responded to a disturbance at an unoccupied house and saw people – likely many underage kids – scattering on foot from a Halloween party leaving behind lots of alcohol. The Sheriff admired a Reno 911 costume and called the shocked owner of the house, so she could pick up her son who organized the party, and lock up the house. There were simply more important things to do, and more serious threats to public safety than the fleeing partiers presented. The common sense of law enforcement officers at all levels regularly trumps what would be futile efforts to enforce every law in every jurisdiction every day. It just isn’t that hard.

ICE agents are enforcing civil, not criminal, laws. The Department of Homeland Security’s priorities have been clearly set forth in a March 2, 2011, memorandum as well as the June 17th memo, namely the promotion of national security, border security, public safety, and the integrity of the immigration system. Only by sensible use of limited resources can those priorities be effectuated. The union representing ICE agents and other employees has clearly stated its opposition to the enforcement priorities and the guidance on prosecutorial discretion, and the AILA/AIC document reports on multiple direct refusals to follow instructions, such as “the ICE union told [ICE personnel] to ignore the June 17 memo.”  “A decision was made not to follow the memo.” ICE “does not consider the memo binding.” In many workplaces, this is called insubordination and results in termination of employment.

These employees do not need further guidance on the substance of the memorandum; they need a lesson in the chain of command.

For more information, read AILA’s press release on the report.

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