Prosecutorial discretion by Immigration and Customs Enforcement agents when it comes to deporting illegal aliens hasn't taken root, says a Nov. 9 report from the American Immigration Lawyers Association and the American Immigration Council.

A June 17 memo signed by ICE Director John Morton instructs personnel to take into account factors such as educational attainment, criminal history, age and circumstances of arrival in the United States when deciding to proceed with the removal of an illegal alien.

"The overwhelming conclusion is that most ICE offices have not changed their practices," the report says.

The Obama administration has said its policy is to focus on the deportation of people posing a threat to society since ICE already operates at about its maximum removal capacity of 400,000 individuals a year.

AILA and AIC say they requested feedback from lawyers and other immigration practitioners across the country over a 4-month period starting on June 30 regarding implementation of the discretion policy. Based on 252 cases, the two organizations conclude that ICE generally has not implemented the policy or implemented it inconsistently.

Some immigration attorneys reported that ICE official said they have "no intention of complying and indicated their jobs are to arrest and deport people," the report says. In other cases, ICE officials interpreted prosecutorial discretion far more narrowly than the memo directs, with some stating that they wouldn't consider discretion except in the case of a life threatening situation.

Discretion extends to those convicted of petty misdemeanors, the report says--since the Obama administration has emphasized the protection of public safety and national security in its deportation policy--but many ICE officials also would not grant discretion for anyone with any type of criminal record, the report says.

The report recommends further guidance and training.

For more:
- download the report, "Holding DHS Accountable on Prosecutorial Discretion" (.pdf)

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