Litwin & Smith, A Law Corporation
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Less ICE Prosecutorial Discretion Under Trump

Dated June 21, 2017

On February 20, 2017, Secretary Kelly issued a memo to provide Enforcement of the Immigration Laws to Serve the National Interest implementing President Trumps Executive Order entitled "Executive Order: Enhancing Public Safety in the Interior of the United. This memo provides guidance to all Department personnel regarding the enforcement of the immigration laws and instructs General Counsel to issue further guidance on the use of prosecutorial discretion.

Until ICE obtains this guidance from General Counsel, ICE is relying on the general policies related to prosecutorial discretion as outlined in the Executive Order and memo.

In recent April 2017 meetings, ICE stated there is no blanket policy of refusing to exercise prosecutorial discretion, and prosecutorial discretion determinations will continue to be made on a case-by-case basis. ICE also has stated that prosecutorial discretion will be exercised far less than before. ICE presumes that it should pursue all cases to a conclusion. That result could be a finding by an Immigration Judge (IJ) that removability has not been sustained, or it could be a removal order. ICE's Office of the Principal Legal Advisor (OPLA) will use prosecutorial discretion to decide which cases to appeal and which bars to raise during litigation.

ICE offices will end the use of dedicated email addresses for prosecutorial discretion requests, and attorneys can no longer escalate denied requests for prosecutorial discretion to regional and national counsel. Instead, local chief counsel will be the final level of review for a prosecutorial discretion request.

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