09/10/2011 08:40 am ET | Updated Nov 09, 2011

ICE Explains Implementation of Prosecutorial Discretion, Includes Victims of Crimes and Witnesses

In August I wrote two posts about the June 17, 2011 memo by the Immigration & Customs Enforcement (ICE) which announced guidelines for the exercise of prosecutorial discretion (Memo). Read them here and here.

It is also important to know that on August 18, 2011, the day President Obama announced prosecutorial discretion, Janet Napolitano, Secretary of Department of Homeland Security (DHS) sent a letter to Senator Dick Durbin, in which she stated that "...the process will not provide categorical relief for any group." Instead, the decision will be made on a case-by-case basis after considering the "totality of circumstances" presented. So, while there are guidelines, it should be clear that the decision is ultimately a subjective one.

Frequently Asked Questions (FAQ)
Because of the public's confusion caused by the Memo, ICE has released two additional communications: (1) warning not to construe prosecutorial discretion as a form of legalization, and (2) more recently, "Frequently Asked Questions" (FAQ), attempting to explain implementation of the process. FAQ explains that:
: 1. The process will not result in permanent residence (green card);
2. There is no automatic employment authorization;
3. If you are not in removal proceedings, you should not turn yourself in;
4. If you are in removal proceedings, you may bring to the attention of ICE attorneys the compelling facts of your case.
5. DHS will continue to detain, arrest, and place in removal proceedings those identified above.
6. This process does not benefit pending criminal cases in federal court;
7. Discretion does not favor anyone apprehended at the border.

Victim and witnesses to Crimes

Equally important is that on the same June 17, a less publicized memo by ICE focused on the discretionary benefit for the purpose of protecting victims of and witnesses to crimes. These include victims of domestic violence (whether male, female, adult or minor) and those seeking to protect their civil rights. Assuming that such candidates do not themselves have a record of criminal violations, the memo states that " is against ICE policy to initiate removal proceedings...[or] remove such individuals in the midst of ...[their] effort to protect their civil rights or civil liberties."

In general, the protected groups include:
• Victims of domestic violence, human trafficking, or other serious crimes;
• Witnesses in pending criminal investigations or prosecutions;
• Plaintiffs in non-frivolous lawsuits regarding civil rights or liberties violations; and
• Individuals engaging in a protected legal actions, such as employment discrimination or
housing conditions, dispute with an employer, landlord, or contractor.

The above situations could receive discretion in the form of withdrawal of a detainer (CIS hold) and release from detention. Available benefits could range from deferral of further punitive action and employment authorization. At the Immigration Court level, hearings may be terminated (subject to reopening at a later date) and they could be granted a stay of removal. Under the right circumstances here too they would be eligible for employment authorization. All of these measures are temporary, however, and subject to an annual review.

Independent of the available discretion, some of these victims may also be eligible for immigration benefits under the Trafficking Victims Protection Act (TVPA) and the Violence Against Women Act (VAWA). The latter, protecting both genders, allows for self petitioning (without the cooperation of the relative) for resident status, based on physical or serious psychological harm. Finally, the U temporary visa, with the benefit of employment authorization is also available to victims or witnesses of crimes such as domestic violence, sexual assault, trafficking, and other certain crimes.

As is evident from the above, immigration law is a complex maze of law, regulations, memos, and policy. It is thus important to locate the solution that best suits the particular circumstances of each client. There is no "automatic" benefit, not even to the spouse or parent or parent of a U.S. citizen. Every benefit relies on additional conditions and limitations. The role of an experienced immigration attorney is indispensable.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.