This memo introduces ICE’s policy of exercising prosecutorial discretion in cases involving victims and witnesses of crimes such as domestic violence and plaintiffs asserting claims for protection of their civil rights and liberties. The memo encourages ICE officers, special agents, and attorneys to use prosecutorial discretion when managing cases with victims, witnesses, and plaintiffs in order to encourage willingness and ability to cooperate with law enforcement. Absent any severe or aggravating factors, the memo dictates it is against ICE policy to begin removal proceedings against a person who is a known victim, witness, or plaintiff. The memo directs ICE officers, special agents, and attorneys to exercise discretion in a case-by-case basis involving victims, witnesses, and plaintiffs in order to avoid deterring individuals from coming forward to report a crime. It also instructs special attention be paid to victims of domestic violence, human trafficking, or other serious crimes, and witnesses in pending investigations or prosecutions, among a few others.
When deciding whether to exercise prosecutorial discretion, any serious adverse factors must be taken into consideration. Examples of serious adverse factors include national security concerns, evidence of a serious criminal history, or if the individual presents a significant threat to public safety. Additional serious adverse factors include evidence the individual violates human rights, or has engaged in serious immigration fraud. Without the presence of any serious adverse factors, favorable discretion including release from detention or a stay of removal is encouraged.