As some may recall, the Director of U.S. Immigration and Customs Enforcement issued a memorandum on June 17 2011, requiring that ICE agents and government attorneys exercise prosecutorial discretion when deciding who should be removed (deported) from the U.S.

What is “prosecutorial discretion”? This is where the government could remove a foreigner from the U.S. for being here illegally, for example, but decides not to prosecute and instead releases the foreigner back into the community without prosecution.

The June 2011 ICE memorandum came at the direction of the Obama Administration. The plan was to review all cases where foreigners are detained by ICE and prioritize them so that the most serious criminals are held in custody while certain others who are not harmful may be released from custody.

Examples of those intended to be released are those who have been in the U.S. for many years without having committed any crimes, and who may have lawful family members in the U.S. The memorandum has guidelines for ICE officers and government attorneys to follow to help focus attention on criminals and undesirables and away from those who have been in the U.S. for many years without causing trouble.

Unfortunately, in many cases ICE has done nothing to prioritize cases and release foreigners in detention who fall within guidelines and perhaps should be released.

Fortunately, within the last couple of days the U.S. Federal Ninth Circuit Court of Appeals directed the U.S. Attorney’s office to review 5 examples of foreigners who are stuck in detention and who appear to be the type who should be released. The court has ordered ICE to indicate to the Court which ones they intend to release. The U.S. Attorneys must,

“advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in [these cases] and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to [these cases.]”

It helps to see the Court step in to enforce regulations. Government runs from the top down and so it is important that ICE officials follow directions and prioritize cases and resources.