Kolken & Kolken. Results-oriented immigration lawyers - specializing in Green Card, Deportation Cases and Temporary Visas.

ICE No Longer Honoring New Prosecutorial Discretion Memo

Published: Feb 28, 2015

Immigration lawyer Bryan Johnson has shared that a Deportation Officer at the Varick Street Detention Center in New York advised that Immigration and Customs Enforcement is no longer honoring the November 20, 2014 prosecutorial discretion memorandum due to Judge Hanen's injunction. The officer went so far to say that, and I quote, the memo has been "ripped off the wall." Newark Enforcement and Removal has confirmed this change in policy.

I have also been told that individuals that are considered a level 3 priority (the lowest priority) are being taken into custody for removal when they report for supervision. This includes parents of United States citizens that are DAPA eligible. Immigration lawyer Matthew Archambeault has indicated that this has been confirmed by ICE in Charlotte. There have been reports from immigration lawyers all over the country of their clients being taken into custody.

From the Carolinas Chapter of the American immigration Lawyers Association:

"ICE is now implementing it’s new policy of enforcement in accordance with the November Executive Action. But for those who have not yet received that desperate call from the client who has been taken into custody at his ICE check in, this is it: If the foreign national has a significant misdemeanor (most often arising in the form of a DUI/DWI) conviction or 3 misdemeanors or a final order after 1/1/14, he will be taken into custody when he checks in with ICE. If he is not checking in with ICE, he stands a chance of getting the knock on the door at 5:00 am. Individuals are being taken into custody even if they are currently in removal proceedings in Charlotte. They are being transferred to Stewart with no holds. ICE has been given the instructions NOT to take into consideration DACA or DAPA eligibility in such detention decisions."

Immigration lawyer Marty Rosenbluth responds: "It is happening all over. And of course if you don't show up for your appointment you are a fugitive and they knock on your door at 5:00 in the morning."

These directives have apparently come directly from HQ in Washington and are not the acts of rogue agents. It is absolutely imperative that you advise your clients accordingly.

UPDATE: Immigration lawyer Mo Goldman reports that Tucson/Phoenix ICE ERO has indicated they are no longer honoring the Nov. 20, 2014 memo as it relates to Expanded DACA/DAPA applicants (except they are making an emphasis on Deportation Priorities).

UPDATE: New Orleans ICE office is ignoring prosecutorial discretion memo and is taking DAPA eligible parents into custody to effectuate removal. Assistant Field Office Director Brian Acuna stated that ICE NOLA no longer needed to consider eligibility for DAPA since the court had enjoined the DAPA and expanded DACA programs.

UPDATE: Immigration lawyer Amy Maldanado has advised that a St. Louis Enforcement and Removal Officer has indicated that 
ICE isn't following the prosecutorial discretion memorandumeven for non-priority cases due to the Federal Court injunction. He further advised that they are following "some other guidelines." The Officer did not elaborate further.

UPDATE: 
ICE has confirmed that it was instructed to remove expanded DACA and DAPA flyers from detention areas. AILA Doc. No. 15022762

UPDATE: 
The ICE ERO Detention Reporting and Information Line confirms the following: "Until further guidance is given, ICE will not consider the new DAPA and expanded DACA guidelines in cases for exercising prosecutorial discretion.”

UPDATE: Courtesy of Charlotte immigration lawyer Benjamin Snyder. Office of Chief Counsel in Charlotte has declined prosecutorial discretion for an individual that is not a priority under the Nov. 20, 2014 memo. Moreover, Charlotte ICE is raiding homes looking for individuals with prior removal orders and is taking people into custody regardless of the nonexistence of a criminal record or DACA/DAPA eligibility.

UPDATE: Courtesy of St. Louis immigration lawyer Raymond Reza Bolourtchi: A St. Louis Enforcement and Removal Officer (ERO) has advised that 1. The November 20, 2014, REMOVAL PRIORITY MEMO remains in full force and effect; 2. ERO has received an e-mail from Headquarters informing all officers that (prospective) DAPA eligibility is NOT to be used any longer as a factor or criteria for the time being; and 3. DWI-DUI convictions remain a priority for removal enforcement.

Click here to see how we can help you.