In one of her last actions as INS Commissioner, Doris Meissner issued a memorandum on the exercise of the agency’s discretion.  The guidelines set forth in the memo should, if properly followed, result in the reduction of some of the more shocking deportations that have occurred in the past few years.  Since 1996, when the range of deportable offenses was greatly expanded and made retroactive, some of the most unfair of these have received extensive media treatment.  Stories of people who have lived in the US since infancy being deported because of minor criminal offenses committed years ago have led to a widespread outcry.

For many months the INS has maintained that it has only limited discretion in choosing who to deport, and that it would take a new law to change the situation.  Congress, meanwhile, responded that it was a matter of INS discretion.  A few months H.R. 5062 was passed by the House of Representatives.  This law would eliminate the retroactive application of deportation laws.  However, the bill got bogged down in efforts to pass the budget bills, and it is now uncertain whether it will ever become law.  Whether prompted by congressional actions or not, this new memo will do much to improve the situation for immigrants in the US.

The memo begins by noting that the INS not only has prosecutorial discretion, it is expected to exercise it in accordance with accepted standards.  One of the most important standards is that a prosecution should promote a substantial interest.  According to the memo “INS officers may decline to prosecute a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by prosecution is not substantial.”  Under the memo, INS officers should not prosecute a case simply because it can, but should prosecute cases that best advance the goals of the INS.  This means that even if “there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with the case.”

The memo notes that there is no bright line rule for determining when prosecutorial discretion should be exercised, but does provide the following list of factors:

·        Immigration status;

·        Length of residence in the US;

·        Criminal history, including the nature of the crime, how long ago it was committed, the person’s age when the crime was committed, and whether the person has committed multiple crimes;

·        Humanitarian concerns, such as family ties in the US, any medical condition affecting the immigrant or their family, and the immigrants ties to their country of citizenship;

·        Immigration history, which would call for more discretion for people who have not violated immigration laws;

·        Likelihood that the immigrant will ultimately be deported;

·        Whether the INS can achieve its goal by a means short of deportation, such as voluntary departure;

·        Whether the immigrant is eligible for some form of relief;

·        The effect of deportation on the immigrant’s future admissibility;

·        Whether the immigrant has cooperated with law enforcement;

·        Whether the immigrant has served with the US military;

·        Available INS resources; and

·        What community attention the case has.  While the memo states that public opinion should not be the reason for an exercise of discretion, it does state that community reaction can bring to the INS’s attention facts of which it was previously unaware.

There are also factors that cannot be used in a decision to exercise discretion:

·        The immigrant’s race, religion, sex, national origin or political beliefs;

·        The INS officer’s personal feeling about the immigrant; and

·        The possible effect of the decision on the INS officer’s person or professional circumstances.

The memo provides a list of factors that should act as a “trigger” in making whether to exercise discretion a possibility.  These are:

·        Lawful permanent residents;

·        Immigrants with serious health conditions;

·        Juveniles;

·        Elderly immigrants;

·        Adopted children of US citizens;

·        US military veterans;

·        Immigrants who have been in the US for 10 or more years;

·        Immigrants who have been in the US since childhood

If the INS decides to make a favorable exercise of discretion, that decision should be documented in the file, including the specific way in which discretion was exercised as well as the legal and factual reason for it.  The INS must also make clear to the alien that the favorable exercise of discretion does not give them any immigration benefit and does not prevent the INS from taking action against them in the future.