Prosecutorial Discretion in Immigration Enforcement

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

A recent article in the L.A. Times highlighted a reported rise in the use of prosecutorial discretion in United States immigration system. There are many undocumented immigrants in the U.S., many of whom want nothing more than to reside in the U.S. legally in hope of eventually obtaining U.S. citizenship. ICE officers and their departments are under a directive to prioritize whom they prosecute under the current immigration laws for removal.  They are expected to target those with criminal backgrounds and those whom they otherwise believe pose a threat to national security.

The article on prosecutorial discretion suggests that, “Immigrants facing deportation are increasingly likely to have their cases dismissed because of mitigating factors such as having U.S. citizen children, according to an analysis by researchers at Syracuse University.”[i]  In reality, the use of prosecutorial discretion varies widely between jurisdictions and is often up to the attorney assigned to the case at that particular time by the Office of Chief Counsel for DSH/ICE.

Prosecutorial discretion in immigration means ICE should focus on national security and public safety.

In 2011, the director of ICE, Mr. John Morton, issued a memorandum directing that immigration officials review a few factors before making the decision to prosecute the individual and seek a removal order from the very busy immigration courts. Factors for consideration include how many years the person has been living in the U.S., how and when they arrived in the U.S. (as a child 10 years ago?), whether their family members served in the military, and also the person’s relationship to other family members who are U.S. citizens[ii].

The 2011 orders sent to ICE field office directors, special agents in charge and chief counsel focus on the civil immigration enforcement priorities. The memo states in its “Background” section that, “ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

If an undocumented immigrant is arrested and detained on suspicion of being a threat to public safety, as ICE memorandums describe, an attorney can intervene and work to negotiate a release or dismissal of pending charges, as suggested in the Los Angeles Times article suggesting more frequently, ICE is using prosecutorial discretion and letting people go about their lives.  If you want to learn more about prosecutorial discretion or believe someone you know if being improperly detained and prosecuted you can call attorney KiKi M. Mosley to find out what options might be available to help.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Los Angeles Times: Prosecutorial discretion on the rise in immigration courts. By Cindy Chang. Jan. 15, 2014

[ii] U.S. Immigration and Customs Enforcement. Prosecutorial Discretion Memorandum. By John Morton, June 17, 2011.

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Decreases in deportation: less enforcement is not immigration reform, but appreciate the policy effort.

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

Under President Obama’s oversight, the U.S. Department of Homeland Security office of Immigration and Customs Enforcement (“ICE”) is deporting less undocumented immigrants in connection with its new policy limiting enforcement resources on, ““public safety, national security and border security,” said ICE spokeswoman Barbara Gonzales.[i]” “ICE has been vocal about the shift in our immigration-enforcement strategy,” she said. “Our removal numbers illustrate this.” The Center for Immigration Studies published their report in October 2013, titled, “Deportation Numbers Unwrapped. Raw Statistics Reveal the Real Story of ICE Enforcement in Decline,” and as to the source of information, CIS states, “This report examines data from a collection of mostly unpublished internal Department of Homeland Security (DHS) and ICE statistics, to provide an alternative evaluation of the administration’s record on immigration enforcement that is based on raw statistics rather than pre-packaged press kits.[ii]

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

Central to the disagreement among Democrats and Republican lawmakers are many of the approximately 12 million undocumented immigrants who may, for all intents and purposes, live among U.S. citizens day to day without any call to consider their immigration or citizenship status. As indicated in the CIS report, a 2011 ICE memorandum directed officers, “not to arrest certain broad categories of illegal aliens, including minor criminals, long-time residents, students, parents, caregivers, and a long list of other excepted categories for whom there was otherwise no statutory basis for special treatment.” Despite a policy decreasing the number of new arrests and detentions, there are still thousands of the same people stuck in the immigration court system, waiting for asylum hearings, waiting in detention facilities, and waiting to move forward with life.

How will ICE officers determine who should be targeted for arrest and detention?

A policy directive suggesting ICE officers not arrest and detain the less threatening illegal immigrants to the U.S. does not guarantee any sense of safety for undocumented residents living in fear. Imagine you are driving around on a suspended drivers license and fear all it would take is for another driver to hit you to expose your illegal presence to a law enforcement officer. No, you probably should not drive on a suspended drivers license, but many do, and have little choice. The necessity to get yourself and family members to work or school, for instance, can create fear in undocumented immigrants who may wonder when their luck may run out and they are arrested and detained for not being present in the U.S. with a lawful immigration status.

President Obama said during his (re)election campaign(s) that he would work to provide undocumented residents with a pathway to citizenship. The decrease in the number of ICE arrests and deportations must give some people a feeling of safety. Meanwhile, critics of immigration reform must argue that an effort to reduce enforcement of out-of-date laws does not cure the underlying problem that those old laws do not reflect the spirit of the will of the people in the United States.

In the event you, a friend or family member is arrested and detained by ICE officers, you should immediately contact an attorney to learn what, if any, rights you or the detained person has, and how the detention and removal processes work and how the attorney can help.

The Law Office of KiKi M. Mosley, works to counsel and represent detained immigrants and file the proper petitions with immigration courts necessary to protect an undocumented man, woman or child. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Bloomberg Businessweek: Deportations Drop as Obama Pushes for New Immigration Law. By Michael C. Bender, Dec. 17, 2013.

Immigration Detention: Why legal representation can be crucial to detainees

The American Civil Liberties Union (“ACLU”) recently reported that the United States has a crisis situation managing almost half a million immigrants in more than 250 detention center facilities as reported in 2011 by the Department of Homeland Security (“DHS”). What concerns people connected to the immigration system is the large percentage of detained immigrants who did not need to be locked up and were not charged with any crimes. This group includes undocumented people seeking asylum from torture, families with small children, elderly people and those with serious physical and mental health conditions. Also being kept in detention centers are “…lawful permanent residents with longstanding family and community ties who are facing deportation because of old or minor crimes.[i]

"ICE's primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The agency has an annual budget of more than $5.7 billion dollars, primarily devoted to its two principal operating components - Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO)." DHS Website.

“ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The agency has an annual budget of more than $5.7 billion dollars, primarily devoted to its two principal operating components – Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO).” DHS Website.

In 2012, ICE removed 409,849 individuals according to the DHS website page of removal statistics[ii].

In one example from several years ago, an unnamed undocumented California resident moved to Illinois for a job. Living in the suburbs of Chicago he met a woman to whom he became engaged. On his wedding day, Immigration and Customs Enforcement (“ICE”) officers arrested the man and detained him in a nearby ICE holding facility. The couple later determined the application for marriage license sent the red flag triggering the arrest and detention. The detained man was transferred to an out of state county detention center which made it difficult for his fiancée and lawyer to travel the increased distance to meet. Conditions for the man’s release were troublesome, as his application for asylum indicated his original home country no longer existed and he would likely face corporal punishment for other reasons if sent to alternative locations.

What happens if you don’t agree to comply with the proposed conditions for release from detention? You could sit in your detention facility for a long time. A recent publication on the website Immigration Equality highlights that, “Due to a series of harsh immigration laws that were passed in the 1990s, persons with minor visa violations, even asylum seekers, often end up in detention for months or years.[iii]” While in detention, many immigrants file complaints to the office of Civil Rights and Civil Liberties at DHS. Immigrants who are LGBT and/or HIV-positive have additional concerns for their health and safety at detention centers and in general detainee populations. The Immigration Equality website has additional links to articles addressing these issues.

Humans rights lawyers and organizations created “Know Your Rights” a video published by the American Bar Association: ABA Know Your Rights.

The video first suggests that detained immigrants find and hire a licensed attorney and warns against something called a Notario because they are not allowed to represent you in immigration courts because notarios are not licensed attorneys. The video also discusses the Notice to Appear that might have been filed with the court and outlines a few of the situations where detention occurs. You may be able to stay in the United States even if you are arrested and detained by ICE officers. Even if you are ordered to be removed from the United States, an attorney can file motions with the immigration court seeking relief from removal for certain reasons.

The Law Office of KiKi M. Mosley, works to counsel and represent detained immigrants and file the proper petitions with immigration courts necessary to protect an undocumented man, woman or child. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i][i] American Civil Liberties Union Website: Immigrants Rights, Immigration Detention.

[iii] Immigration Equality Website: Detention.