Prosecutorial Discretion

On June 17, 2011, ICE Director John Morton issued a Memorandum addressing the use of prosecutorial discretion in immigration matters and the Department of Homeland Security announced that it would be reviewing all pending removal cases, including those in which a Notice to Appear has not yet been issued. ICE attorneys have always had this authority, but these recently published prosecutorial discretion guidelines may encourage the favorable exercise of discretion in certain cases. ICE has published an FAQ on this process.

On November 17, 2011, the Principal Legal Advisor for Immigration and Customs Enforcement published a memorandum to all the attorneys that prosecute cases in immigration court, directing them to review incoming removal cases and those cases currently pending in immigration court. For cases currently in immigration court, ICE attorneys are reviewing cases and may affirmatively offer to exercise prosecutorial discretion. This review remains an ongoing process.

UPDATE: On October 5, 2012, Department of Homeland Security issued written guidance that extends discretionary relief to lesbian, gay, bisexual and transgender (LGBT) immigrants with same-sex partners in the U.S. The new guidance instructs Immigration and Customs Enforcment (ICE) officers, agents, and attorneys to recognize these LGBT families for purposes of relief on a case by case basis as defined by a June 2011 memo from ICE Director John Morton.