Jamaica Magazine

Immigration: A Review of Immigration’s Prosecutorial Discretion Memorandum and its impact on Removal Proceedings

On June 17, 2011, Director John Morton, of Immigration Customs and Enforcement issued a memorandum regarding its new policy on removal proceedings. In summary the memorandum indicated that the Immigration and Customs Enforcement Prosecutors should use “Prosecutorial Discretion” when deciding whom to detain or release. The discretion includes taking into account several factors, including the person’s education, whether he or she has graduated from high school and has attended college, if the illegal immigrant is the child or spouse of a U.S. citizen, if a relative has served in the military or if the individual is a primary caretaker of someone who is ill. Current conditions in the person’s home country, the circumstances upon his or her arrival here and whether the person came here as a young child may also be taken into account. Illegal immigrants’ criminal history and whether they pose a risk to the country’s national security will also be considered, as will any history of prior removal. Crime victims and witnesses may also be given special consideration. You may access the memorandum at: http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf

This memorandum caused national headlines. Some individuals have interpreted this memorandum as an indication that the United States Government is offering temporary amnesty to undocumented individuals. While some individuals have interpreted this memorandum to indicate that they will not be deported despite the fact that they have no legal status. The facts are that the Government is still prosecuting individuals in deportation/removal court. My experience with the Government’s attorneys and my interpretation of Immigration’s memorandum indicate that this new policy will provide benefits to some individuals who previously were destined for immediate removal from the United States.  However, each case will be considered on an individual basis and the Government’s decision whether to deport or not to deport an individual is based entirely on their discretion.

The Government has made announcements that the memorandum of “Prosecutorial Discretion” does not impact individuals who are not currently in removal proceedings. Consequently, students and others unlawfully present in the United States, but not in removal proceedings should not actively seek out the immigration authorities because there are no guarantees that an individual removal case will be administratively closed. Anyone who seeks to be placed in removal proceedings, in the hopes of avoiding deportation, could end up being deported.

The American Immigration Lawyer’s Association’s has issued the following warnings to protect people from misinformation and immigration scams:  

  • Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement!
  • There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
  • Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.


The million dollar question then becomes “will undocumented individuals be able to benefit from the new policy of “Prosecutorial Discretion?” This new policy of “Prosecutorial Discretion” will only be beneficial if an individual is able to present his case in a persuasive manner that highlights those factors such as family ties, good moral character, etc. The best way to present a persuasive case is through an attorney. If an individual has previously been ordered deported and/or received a denial on an immigration petition, it is best to obtain a complete copy of his/her immigration record before applying for stay of removal. Finally, individuals should only seek to benefit from the Government’s new policy by working with a qualified immigration attorney.

Disclaimer: This article is a broad overview and is provided as a public service. This article is not intended to establish an attorney-client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed. 


About the Writer:
Safiya Byars ([email protected]) is the senior partner and owner in the Law Office of Safiya Byars (www.byarslawgroup.com). She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030.  Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.

About the author

Safiya Byars, Esq

Safiya Byars is the founder and senior partner of the Byars Firm. Attorney Byars serves as the Chair of the Family Immigration Continuing Learning Education and the Vice-Chair of the Immigration Law Section of the State Bar of Georgia. She is a native of Kingston, Jamaica. The Byars firm is located at 3720 Chamblee Dunwoody Road, Suite D2, Chamblee, Georgia 30341. The Byars Firm handles Immigration, Family, and Estate Planning matters. We can be reached at 678-736-5600 and email: [email protected].