[Blog]

There has been a lot of talk recently about the Immigration and Customs Enforcement (ICE) memorandum on prosecutorial discretion. The idea is that individual agents and attorneys for ICE can decide not to "prosecute" removability against an alien who they feel deserves that kind of compassion or use of discretion. The memo itself is not necessarily revolutionary, as the agents and attorneys always had that power. The importance is that, in light of the seriously increased immigration enforcement under the Obama administration, this memo reminds agents and attorneys of that authority, and I think, in so doing, recommends that they use it in appropriate situations.

I complained about the actions of an attorney for the government in the case of the South African asylum applicants. Ultimately, the ICE attorneys decided not to appeal our win, a kind of prosecutorial discretion that they utilized in favor of my clients, when no legal authority required them to. On the one hand, I feel some of the government actions in that case were not appropriate, however, the same office went out of their way to help my clients by not appealing and forcing them to expend additional resources and face the possibility of the Board of Immigration Appeals (BIA) overturning the decision and denying them asylum... so it cuts both ways.

Today, I had a case of a seriously mentally ill man who was granted cancellation of removal, and allowed to remain in the United States with his family who have been struggling to care for him for many years now. The government's attorney did not oppose the case, and in fact, agreed that he should be granted that relief without requiring any testimony or argument on the strength of the medical and psychological records submitted before trial. He didn't have to do that. He could have fought the case, put my client to his burden of proof, and challenged any incorrect or conflicting testimony (which for a guy with auditory hallucinations there certainly would have been some). But he used his prosecutorial discretion, not to agree not to prosecute the case, but to agree to his being granted relief. Even the memo doesn’t require or suggest that he take this action. In fact, had they simply terminated the case against him, his family would have been in a worse situation, because he would have gone back to the status he had before (none) which results in his not being eligible for many forms of financial and medical assistance that he needs. By doing exactly what he did, the government's attorney's prosecutorial discretion resulted in my client's entire family having a better life, and probably lessening the hardship his family has endured for the last 15 years.