Memo - Prosecutorial Discretion

Secretary
U.S. Department of Homeland Security
Washington, DC 20528

Homeland
Security
June 15, 2012

MEMORANDUM FOR:

David V. Aguilar
Acting Commissioner, U.S. Customs and Border Protection
Alejandro Mayorkas
Director, U.S. Citizenship and Immigration Services
John Morton
Director, U.S. Immigration and Customs Enforcement

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FROM:

Janet Napolitano {/ J-1
Secretary of HomeJJ/ntr8'ecurfty /

SUBJECT:

Exercising Proset¢orial Discretion with Respect to Individuals
Who Came to thei.Jnited States as Children

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the
Department of Homeland Security (DHS) should enforce the Nation's immigration laws against
certain young people who were brought to this country as children and know only this country as
home. As a general matter, these individuals lacked the intent to violate the law and our ongoing
review of pending removal cases is already offering administrative closure to many of them.
However, additional measures are necessary to ensure that our enforcement resources are not
expended on these low priority cases but are instead appropriately focused on people who meet
our enforcement priorities.
The following criteria should be satisfied before an individual is considered for an exercise of
prosecutorial discretion pursuant to this memorandum:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for a least five years preceding the date of
this memorandum and is present in the United States on the date of this memorandum;
• is currently in school, has graduated from high school, has obtained a general education
development certificate, or is an honorably discharged veteran of the Coast Guard or
Armed Forces ofthe United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple
misdemeanor offenses, or otherwise poses a threat to national security or public safety;
and
• is not above the age of thirty.

www.dhs.gov

Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not
designed to be blindly enforced without consideration given to the individual circumstances of
each case. Nor are they designed to remove productive young people to countries where they
may not have lived or even speak the language. Indeed, many of these young people have
already contributed to our country in significant ways. Prosecutorial discretion, which is used in
so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered
whether or not an individual is already in removal proceedings or subject to a final order of
removal. No individual should receive deferred action under this memorandum unless they first
pass a background check and requests for relief pursuant to this memorandum are to be decided
on a case by case basis. DHS cannot provide any assurance that relief will be granted in all
cases.
1. With respect to individuals who are encountered by U.S. Immigration and Customs
Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and
Immigration Services (USCIS):
• With respect to individuals who meet the above criteria, ICE and CBP should
immediately exercise their discretion, on an individual basis, in order to prevent low
priority individuals from being placed into removal proceedings or removed from the
United States.
• USCIS is instructed to implement this memorandum consistent with its existing guidance
regarding the issuance of notices to appear.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order
of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who
meet the above criteria by deferring action for a period of two years, subject to renewal,
in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who
believe they meet the above criteria to identify themselves through a clear and efficient
process.
• ICE is directed to begin implementing this process within 60 days of the date of this
memorandum.
• ICE is also instructed to immediately begin the process of deferring action against
individuals who meet the above criteria whose cases have already been identified through
the ongoing review of pending cases before the Executive Office for Immigration
Review.
3. With respect to the individuals who are not currently in removal proceedings and meet the
above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial
discretion, on an individual basis, by deferring action against individuals who meet the

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above criteria and are at least 15 years old, for a period of two years, subject to renewal,
in order to prevent low priority individuals from being placed into removal proceedings
or removed from the United States.
• The USCIS process shall also be available to individuals subject to a final order of
removal regardless of their age.
• US CIS is directed to begin implementing this process within 60 days of the date of this
memorandum.
For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept
applications to determine whether these individuals qualify for work authorization during this
period of deferred action.
This memorandum confers no substantive right, immigration status or pathway to citizenship.
Only the Congress, acting through its legislative authority, can confer these rights. It remains for
the executive branch, however, to set forth policy for the exercise of discretion within the
framework of the existing law. I have done so here.

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