On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a memorandum regarding exercising prosecutorial discretion with respect to individuals who came to the United States as children.
The memorandum directs DHS component agencies such as Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE) and the US Citizenship and Immigration Services (USCIS) to exercise prosecutorial discretion, on an individual basis, by deferring action for individuals who meet the following criteria:
- Came to the US under the age of 16
- Has continuously resided in the US for at least 5 years preceding the date of the memorandum and is present in the US on the date of the memorandum
- Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the US
- Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety
- Is not above the age of 30
The June 15, 2012 memorandum is the latest policy pronouncement on the exercise of prosecutorial discretion. Prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. Agencies must prioritize the use of their personnel to ensure that the aliens they remove represent enforcement priorities. An agency may favorably exercise prosecutorial discretion by settling or dismissing a proceeding or by not initiating proceedings at all.
Since the issuance of the June 17, 2011 memorandum of ICE Director John Morton there have been large efforts to favorably exercise prosecutorial discretion for low-priority cases. So far these efforts consist of offers to terminate or close removal proceedings. The June 15, 2012 memorandum of Secretary Napolitano expands these efforts by offering deferred action to so called “Dream Act” children. The Development, Relief and Education of Alien Minors Act (Dream Act) proposed to offer a path to permanent residence to individuals who were brought to the US as children but it failed to pass in Congress. The June 15, 2012 memorandum of Secretary Napolitano now offers some relief to these children short of granting them any status.
Deferred action is a discretionary decision to defer any action to remove an individual from the US. When DHS grants deferred action to an individual that person may apply for work authorization. This is a significant improvement because in cases where ICE has favorably exercised discretion by having the proceedings closed or terminated, the lack of a formal grant of deferred action has deprived concerned aliens of the ability to apply for work authorization.
The new policy does not apply to everyone however. Aliens convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct are not eligible to be considered for deferred action.
The policy defines a felony as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. It defines a significant misdemeanor as a federal, state, or local criminal offense punishable by no more than one year of imprisonment that involves:
- Violence, threats, or assault, including domestic violence
- Sexual abuse or exploitation
- Burglary, larceny, or fraud
- Driving under the influence of alcohol or drugs
- Obstruction of justice or bribery
- Unlawful flight from arrest, prosecution, or the scene of an accident
- Unlawful possession or use of a firearm
- Drug distribution or trafficking
- Unlawful possession of drugs