Recent DHS Memos on Prosecutorial Discretion

The U.S. Department of Homeland Security (DHS) has published a few memos in recent months on the topic of “Prosecutorial Discretion.”  Some confusion may exist in your communities about what these memos mean.

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), which is a part of DHS, issued a memo in which he provided guidance to ICE officials about how to exercise Prosecutorial Discretion.

But first, what exactly is “Prosecutorial Discretion”?  As John Morton writes in his June 17 memo, “prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.”  Basically, Prosecutorial Discretion is the choice that DHS officials have in each individual case to make a decision that will result in a better result for an immigrant.

For example, an ICE official might decide to not arrest a non-citizen who appears to be in the United States without permission.  An ICE attorney might decide to not put a non-citizen into Removal Proceedings in Immigration Court.  DHS might decide not to deport an individual who is subject to a final order of removal from the United States.

It is important to understand that the recent memos are NOT offering an amnesty program.  They do NOT provide an automatic path for a person to obtain a green card or employment authorization.  It is also important to understand that there might be some dishonest people in your communities who offer to get you a green card or an employment authorization card for a substantial cost.  Beware of people offering you green cards or employment cards as a result of the recent memos.  They may be trying to take your money and trick you.  The recent memos do NOT offer any kind of program that you can sign up for.

On August 18, 2011, Janet Napolitano, Secretary of DHS, issued a letter stating that government officials will review the cases of the approximately 300,000 people who are in removal proceedings in Immigration Courts across the country.  Secretary Napolitano stated that the officials will identify certain cases that might be appropriate for Prosecutorial Discretion.

If you have questions about the legal effects of the recent memos on Prosecutorial Discretion, or about any legal aspects of your immigration case, you should contact a qualified immigration lawyer.  You should NOT seek legal advice from a notario or an immigration consultant.

For more information, please view the following documents:

June 17, 2011 memo regarding Prosecutorial Discretion from John Morton, Director, ICE (English)

August 18, 2011 letter from Janet Napolitano, Secretary, DHS (English)

August 20, 2011 Consumer Advisory from the American Immigration Lawyers Association (AILA) (English and Spanish)

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