March-April 2012

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SPOTLIGHT by Andrea Montavon-McKillip Prosecutorial Discretion and Your Client S erving as keynote speaker at AILA's 2011 An- nual Conference in San Diego, Immigration and Customs Enforcement (ICE) Director John Morton said that ICE had annual resources to remove less than 4 percent of all individuals unlaw- fully in the United States. He remarked that immi- gration detention centers should not serve as penal settings. Rather, they should function solely to de- tain those who pose a flight risk or a danger to the community, and should operate for the sole purpose of removal. The next day, Morton issued two memo- randa to ICE employees about using prosecutorial discretion to prioritize the agency's resources. He defined prosecutorial discretion as the decision "not to assert the full scope of the enforcement authority avail- able to the agency in a given case." During the months aſter the re- lease of those memos, immigration practitioners observed how Morton's guidance was being applied in the field. In November 2011, AILA and the American Immigration Council released a survey of 28 ICE offices nationwide, which found great dis- crepancies in the way the Morton memos were being applied, if at all. Indeed, despite our best efforts, ICE won't exercise prosecutorial discre- tion in many meritorious cases. Take Your Cue from the Memos Nevertheless, prosecutorial dis- cretion remains an important tool, particularly in detainee cases in which the immigration court is un- likely to grant bond. It is important to recognize that prosecutorial dis- cretion should be requested only in those cases where your client meets 14 VOICE most of Morton's 19 enumerated positive factors, has one or more of the eight "super-special" factors, or has some other circumstance that makes his or her case especially sympathetic. ICE officers frown upon the barrage of skeletal ADDITIONAL RESOURCES Update on Implementation of Prosecutorial Discretion Policy [Audio Seminar] (2/16/2012) LAC Practice Advisory: DHS Review of Low Priority Cases for Prosecutorial Discretion (2/15/2012) Participate in a Survey on Prosecutorial Discretion (2/8/2012) Current Developments in Prosecutorial Discretion & Pilot Programs [Podcast] (12/13/2011) FREE! When All Else Fails, Try Deferred Action: What Is It and How to Get It! [Web Seminar] (10/25/2011) requests in cases where the detainee has a better chance of winning the lottery than being released from detention. At a recent South Florida AILA-ICE liaison meeting, one of the ICE representatives said, "Simply attaching a prosecutorial discretion memo or mentioning prosecutorial discretion is not partic- ularly compelling or persuasive." Therefore, a strong request for prosecutorial discretion is not something that can be prepared in an aſternoon; ample time is necessary to draſt a detailed memo explaining why the Morton memos pertain to your case. The good news is that if you start the process immediately upon detention, you may be able to secure the cli- ent's release before a bond hearing is even scheduled. Also, because the 19 Morton factors mirror many of the factors required for applications for relief, you already will have collected much of the evidence for the indi- vidual hearing aſter your request for prosecutorial discretion is completed. Step by Step … Start by identifying the district of- ficer (DO) to which your client is as- signed and get his or her contact infor- mation. Mail or e-mail the DO a G-28, Notice of Entry of Appearance as At- torney or Accredited Representative, or EOIR-28, Notice of Entry of Ap- pearance as Attorney or Representa- tive Before the Immigration Court, so that the DO knows he or she is autho- rized to speak to you about your cli-

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