Executive Action: Prosecutorial Discretion

If and when undocumented aliens are apprehended, detained and subsequently removed from the country, the process is dependent on priorities according to the 20th November executive directive.

Priority 1

Those who might be a threat to national and border security or are a threat to the public are of the highest priority including aliens who have been found to have been engaged in espionage or terrorism, aliens trying to enter the country at a border or entry point illegally, aliens who have been convicted for an offense related to actively participating in a street gang that had criminal intent and aliens convicted of a felony or aggravated felony.

These aliens must be removed as a priority unless they are eligible for asylum or another relief determined by current laws, or if a Field Office Director of the U.S. Immigration and Customs Enforcement or Customs and Border Protection Director of Field Operations notes that there are exceptional circumstances, which mean that the alien will not threaten national security.

Priority 2

The second highest priority for removal is an alien who has been convicted of 3 or more misdemeanor offenses, besides traffic offenses that are minor or local or state offenses for which one of the elements was related to the immigration status of the alien as long as the offences took place at three separate times. An alien who has a conviction for a "significant misdemeanor, which could be any of the following:

• domestic violence;
  
  
• sexual exploitation or abuse;
  
  
• burglary;
  
  
• unlawfully possessing or using a firearm;
  
  
• drug trafficking or distribution;
  
  
• driving while intoxicated. 

If the offense does not appear in the above list it could be an offense which the individual received a penalty of 90 days or more in custody.

Under priority 2 are aliens who have been apprehended at any place in the U. S. after entering unlawfully or re-entering the country and who are unable to prove that they have physically presented themselves to an immigration officer since 1st January 2014 and also any aliens considered by a Field Office Director for ICE, A Service Center Director for USCIS, or a District Director for USCIS , have substantially abused the visa waiver or visa programs.

The aliens under priority 2 can be asked to leave the country immediately unless they are eligible for asylum or any other relief covered by the country’s laws or they are no threat to public safety or border and national security.

Priority 3

This priority covers aliens who have had a final removal order issued on or proceeding the 1st January 2014.

The executive directive states there may be other aliens who should be removed but the ones listed in Priority 1 to 3 take priority over all others.

Detention of aliens

DHS detention resources in general should be made use of to support any enforcement priorities as noted in priorities 1, 2 and 3 or for aliens who have been subjected by law to mandatory detention. However, detention resources should not be used on aliens who are suffering from any serious mental or physical illness, who have a disability, who are elderly or pregnant or if they are nursing, as a primary caregiver, someone who is infirm.

Administering prosecutorial discretion


In all cases DHS personnel are required to exercise discretion which is determined by an individual’s circumstances. As noted above, aliens in any of Priority l, 2 or 3 have to be prioritized when it comes to removal unless as stated above they are eligible for asylum or any kind of relief as dictated by our laws, or if an Field Office Director for ICE, a Sector Chief for CBP, or the Director of Field Operations for CBP states that the person is not a threat to national or border security or a threat to the safety of the public therefore an enforcement priority does not exist.

DHS personnel when making a decision must take into consideration: extenuating circumstances involving any offenses of convictions; extended period of time since the occurrence of the offense or conviction; period of time in the U. S.; military service; community or family ties in the U S. status as a witness, victim or plaintiff in criminal or civil proceedings; or important humanitarian issues like age, poor health, pregnancy, presence of a young child, or a relative who is seriously ill.
  
Read about Enforcement Priorities, return to Executive Action, or read the FAQ for more updated information.