Tag: prosecutorial discretion

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Why consider the option of seeking Prosecutorial Discretion?

Why consider the option of seeking Prosecutorial Discretion?
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Prosecutorial Discretion is one of the few immigration policies that this Biden Administration had emphasized during his term. Prosecutorial Discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) is a critical option for individuals in unlawful status. PD allows ICE officers and attorneys to prioritize certain cases for enforcement while deprioritizing or deferring action on others, often benefiting individuals who do not pose a threat to public safety or national security. 

For those in unlawful status, seeking PD can result in relief from deportation or removal, allowing them to remain in the U.S. without fear of immediate removal. With changes in administrations often leading to shifts in immigration policy, those in unlawful status should consider taking advantage of PD while President Biden’s administration, which has demonstrated a more lenient stance on immigration enforcement, is still in power. Acting promptly is crucial, as future administrations may take a more aggressive approach toward enforcement, closing the window of opportunity for relief. Below are basic information about Prosecutorial Discretion.

What is Prosecutorial Discretion?

Prosecutorial discretion (PD) is the government’s power to decide how to apply the law to someone. In immigration situations, this can happen at various points in a person’s case and in different ways.In immigration situations, this can happen at various points and in different ways. For instance, the Department of Homeland Security (DHS) might opt not to take an immigration case to court. Attorneys from Immigration and Customs Enforcement (ICE) might stop or delay a court case, agree with the immigrant’s lawyer on certain facts, suggest that the immigrant’s request for relief should be accepted, or choose not to appeal a court decision. They can even reopen a closed immigration case if they want to. ICE also has the power to decide who to arrest, keep in custody, or release while a final decision is made on a case. 

How does the government make decisions about prosecutorial discretion? 

Every case is looked at separately. The government has written rules to help the Department of Homeland Security (DHS) decide when to use PD. According to these rules, there are two types of cases: nonpriority and priority. Non-priority cases aren’t high on the government’s list for enforcing the law and might qualify for PD. Priority cases include people who are seen as risks to national security, public safety, or border security (like those who entered the United States without permission after November 1, 2020). These cases probably won’t qualify for PD. 

What factors are considered when evaluating PD?

The government considers many factors in making its determination, including: 

  • Age, especially if an individual is young or older 
  • Length of time in the United States 
  • Whether you are a victim of a crime or a witness, cooperation with law enforcement 
  • Eligibility for immigration relief 
  • Military service 
  • Whether you are a lawful permanent resident
  • Whether you are pregnant, postpartum, or nursing
  • Have U.S. citizen children or spouse 
  • Serious medical conditions
  • Other compelling humanitarian factors  

What should I do if I believe I might be eligible for prosecutorial discretion? 

If you believe you are eligible for PD, you should speak to an attorney at Tancinco Law, P.C. to evaluate all potential options. An attorney will likely ask you to collect documents and information to support the PD request. 

President Biden’s administration has emphasized focusing immigration enforcement on individuals with serious criminal records, and the use of PD has been encouraged to reduce the backlog of cases in immigration courts. By seeking PD, individuals in unlawful status can potentially have their cases deprioritized or even closed, allowing them to remain in the U.S. legally for the time being. As this administration’s time winds down, it’s important for those affected to consider all options, including PD, to secure their future in the U.S. before any potential policy shifts under a new administration.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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U.S. District Court Judge Orders Injunction on Biden’s Priority for ICE Enforcement & Prosecutorial Discretion Memos

U.S. District Court Judge Orders Injunction on Biden's Priority for ICE Enforcement & Prosecutorial Discretion Memos
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If ICE were to immediately do an en masse arrest, detention and removal of millions of unauthorized immigrants from the United States, it will not only be an inhumane undertaking but there will also be an adverse socio-economic impact and a tremendous drain on government resources.

With a policy for a more compassionate immigration policy, President Biden issued policy directives through the Immigration and Customs Enforcement (ICE) agency early this year.

The Biden-Harris Administration came out with “priorities for enforcement” through ICE memoranda and directives:

(1) Pekoske Memo Dated January 20, 2021: Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities;

(2) Johnson Memo Dated February 18, 2021: Interim Guidance: Civil Immigration Enforcement and Removal Priorities

(3) Maher Memo Dated May 27, 2021: Implementing Interim Civil Immigration Enforcement Policies and Priorities;

(4) Trasvina Memo Dated May 21, 2021: Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

The Pekoske and Johnson Memos set interim guidelines for immigration enforcement, including providing guidance to ICE ERO officers on prioritizing enforcement actions, custody decisions, the execution of final orders of removal, and other actions. Priorities for enforcement listed those individuals who are threats to national security, border security public safety and those with convictions for aggravated felonies.

The Maher and Trasvina Memo, on the other hand, provided guidance on ICE exercise of prosecutorial discretion (PD) at all stages of ICE enforcement including, but not limited to, issuance of Notice to Appear, Cancellation of the NTA, Stipulation to Relief, Administrative Closure, Termination and Continuances of Removal.

Notwithstanding the compassionate and practical nature of the priorities for enforcement and the reasonable guidance provided on prosecutorial discretion as contained in the Memos, the States of Texas and Louisiana filed a lawsuit against the Biden Administration questioning the legality of the abovementioned Memoranda (State of Texas v. United States, 6:21-cv-16 (S.D. Tex. Aug. 19, 2021). As a result of the lawsuit, Judge Drew Tipton issued a preliminary injunction against ICE restraining them from enforcing the ICE Memos. The injunction was temporarily suspended on August 23, 2021 until August 30, 2021.

Before the issuance of the injunction order, several immigrants who are in removal proceedings applied for Prosecutorial Discretion based on the relevant ICE Memo resulting in closure and sometimes termination of removal proceedings. With the injunction, the ICE priorities for enforcement and the prosecutorial discretion based on the subject Memos may not be enforced in the interim pending litigation. But this does not necessarily mean that the immigrant in removal proceedings may not avail of the request for prosecutorial discretion and other applicable reliefs based on ICE long standing policy. It will be best to seek legal advice from professional legal counsel for existing remedies that may still be available pending the final decision on the lawsuit.

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We’re now facing Trump’s harsh immigration policies

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After eight years of being accustomed to the Obama Administration’s compassionate and humanitarian immigration policies, we’re now witnessing a 180-degree. Enforcement of immigration law will soon be heightened not only against aliens with criminal convictions, but to practically all who are violators of immigration law, including those who have overstayed their visas and those who have committed acts that are considered misdemeanors.

The Executive Order signed on January 23, 2017 relate to border security, admission of refugees and immigration enforcement. Building a physical border wall that extends 2,000 miles along the border with Mexico will cost taxpayers billions. While President Trump says that Mexico will pay for the wall, the pronouncements of Mexico’s President show otherwise. How will this be feasible? Also with a provision in the Executive Order barring political asylum seekers, what will America do with those women and children escaping persecution?

More agents

On immigration enforcement, the hiring 10,000 more Immigration and Customs Enforcement (ICE) officers to arrest non-citizens who have violated immigration law, detain and remove undocumented immigrants already ordered removed in the past are also part of the Executive Order.

ICE together with CBP at the border will be turned into a deportation force with the power to remove any non-citizen without due process, who in the “judgment of the immigration officer” (not an immigration judge) is a risk to public safety or national security.

For the Filipino immigrant who has already fallen out of status, there is grave concern about this aggressive immigration enforcement. There is a marked distinction between former President Obama’s Executive Action and that of President Trump.

In former President Obama’s Memorandum on Prosecutorial Discretion, he categorized certain immigrants that should be subjected to removal. There is a list of priorities that were enumerated emphasizing that those with strong family ties in the U.S. are to be accorded deferred action and will be the last on the list of priorities for removal. ICE was instructed to prioritize those with serious criminal offenses, resulting in record high removal of immigrants with criminal offenses at the same time preserving family unity.

Broad range of targets

On the other hand, Trump’s Executive Order lists a broad range of individuals that are subject to enforcement. The list includes those who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense, where such charge has not been resolved; (3) have committed acts that constitute a chargeable criminal offense; (4) who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; (5) Have abused any program related to receipt of public benefits; (5) Are subject to a final order of removal, but have not departed. There is no ranking or prioritizing in this list and no reprieve from removal is mentioned to those with strong family ties in the U.S.

The effectivity date of Trump’s Executive Orders is uncertain. It is possible that ICE is already immediately acting on it. A day after President Trump signed the Executive Order, a group of ICE Officers were spotted at a non profit child care center in San Francisco, to apprehend a criminal offender. The children and workers at the center were all taken aback and eventually the ICE officers left without arresting anyone. This is alarming considering that there is an existing 2011 ICE Memorandum instructing ICE officers to stay away from sensitive places like churches and schools.

Whether the presence of ICE officers in our cities will be a common sight in the coming days is horrifying to all of us not only to undocumented immigrants. But this is just the beginning. There are concrete steps we can take. We start by writing our legislators and urge them to oppose Trump’s immigration policies of indiscriminately prosecuting and removing immigrants. Legal challenges in court will be filed to attack the constitutionality of Trump’s Executive Actions. We stand in solidarity with all immigrants and stay firm with our principles and values that made America a strong nation of immigrants.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)

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Global Pinoy

Prosecutorial discretion as an option for the undocumented

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Ten years after arriving in the United States, Eva seems to have lost her hope of legalizing her stay. She was petitioned by her U.S. citizen fiancé, but after a few weeks of living together as a couple, her petitioner abandoned her. Her U.S. citizen fiancé never married her. She now has a child who was born in the United States from a subsequent relationship, but the father also refuses to acknowledge the child; and, neither is he marrying Eva.

In 2014 when President Obama announced the Executive Actions for parents of U.S. citizens (DAPA), Eva became hopeful that she would have an opportunity to stay and work legally. After an adverse ruling was rendered on June 23, 2016 by the U.S. Supreme Court upholding the injunction on the DACA+ and DAPA, Eva became fearful that this setback would have the effect of immediate removal/deportation from the United States for the millions of immigrants who were prospective beneficiaries of the DAPA and DACA+.

Secretary of the U.S. Department of Homeland Security Jeh Johnson, made a public statement that the enforcement priorities will be focused on those who have criminal convictions, threats to public safety and national security and border security. New immigration violators or those who just arrived and are now in unlawful status are second in priority for enforcement. Last in priority of enforcement are those with other immigration violations or those who are in the country in unauthorized status. This last category of immigrants is considered non-priority.

Despite these categories of enforcement priorities, there are recent cases where the DHS still placed in removal proceedings individuals who are in a non-priority category. This is quite troubling for those who are already in authorized stay. While there is no increase in the apprehension of undocumented immigrants, it is important to understand that if there is no immediate relief available, prosecutorial discretion may still be requested.

This prosecutorial discretion refers to different actions by the DHS to avoid removal, placing an individual in removal proceedings, dismissing an action, deciding to release a detained individual or whether to grant deferred action or parole. There is a broader deferred action policy that may be asserted in requesting for prosecutorial discretion.

There are different factors taken into account in order to warrant a favorable exercise of discretion from DHS. It may include, among others, the following: length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Eva may take still have the option of requesting for prosecutorial discretion if she ever finds herself in immigration court for removal proceedings. Whether or not she will be granted favorable exercise of discretion will depend on the circumstances of her case.

Absent comprehensive immigration reform as well as the DACA and DAPA programs, prosecutorial discretion remains good policy and may always be requested especially in humanitarian cases where removal will affect families with U.S. citizens or lawful permanent residents.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

Predicament of American daughter: Family separation

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Sonia was born and raised in San Jose, California. From the outside, Sonia seemed like your typical happy-go-lucky senior in high school getting ready to go college, but at home, Sonia lives a different reality.

Her parents, Edgar and Rowena, are from the Philippines. They came to the United States when Rowena was pregnant with Sonia and decided to overstay their tourist visa.

Refused to leave

When Sonia was very young, her parents were arrested by the Immigration Service and were to be deported. Edgar and Rowena, however, refused to leave the US and decided to stay. For years, they hid their status and tirelessly worked several under-the-table jobs so Sonia could study in the best schools and participate in after-school activities.

Illegal status

It was only recently that Sonia found out about her parents’ illegal status in the United States when she wanted to apply for private student loans for college. Since finding out the truth about her parents’ illegal status, Sonia has been worried that her parents can be taken anytime from her and she’s scared of what will happen when she leaves for college. She relies on her parents for everything, emotional and financial needs. In two weeks, Sonia will be turning 18 years old and instead of the usual birthday debut celebration, she told her parents not to prepare anything special.

Instead, she wanted to take steps to help her parents. Is there anything that Sonia can legally do for her parents?

Deferred action

More than a year ago, US President Barack Obama released two immigration executive actions that will provide immigration relief to undocumented parents of US citizens (called DAPA or Deferred Action for Parents of Americans); and, an expansion of the Deferred Action for Childhood Arrivals (DACA) for undocumented young immigrants.

The DAPA and DACA will affect more than 4 million undocumented immigrants.

Instead of the implementation of these reliefs, however, a lawsuit was filed by 26 states. Currently, the implementation of Dapa, the program which was supposed to allow undocumented parents with US citizen children to obtain an employment authorization document and be deferred from removal, is still suspended until the US Supreme Court decides on this case.

It is expected a decision will be reached by June 2016. Until then, parents with US citizen children will have to avail of alternative options.

US citizen children may only petition their parents after they turn 21 years old. Until Sonia reaches this age, there is really nothing much she can do affirmatively to help her parents with their immigration status. Even assuming that she turns 21 years old, there is a bigger hurdle that she has to overcome before she can file a petition for her parents.

The deportation order may be enforced anytime by the Department of Homeland Security (DHS) against her parents if they are found to be still present in the United States. Fortunately, there is “prosecutorial discretion” request that may be filed with the DHS to prevent this from happening.

Sonia’s case is very sympathetic and her desperation to help her parents is understandable considering that her parents are her only means of support. She represents many young immigrants who are in the same situation and who were afforded the opportunity to be integrated into the American system just to be threatened with family separation with no relief available.

Hopefully, the DAPA litigation will result in a favorable judgment for the Obama administration and her parents will be given temporary relief.