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U.S.
u.s. Immigration

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Fnforcenlt~n!

DEC 11 2006

MEMORANDUM FOR:

. ant Directors
Assistant
Deputy
ty Assistant Directors
Field OffiCe
Office Directors

"JO.hfiP~
Torr~es
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Dll'ector

FROM:
SUBJECT:

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This mt}morandum serves to review the importance of exercising prosecutorial discretion when
making ciistody determihations for aliens (adults and/or juveniles) transferring from hospitals
and social services or law enforcement agencies who have severe medical conditions. The
Office of Detention and Removal Operation's (DRO) commitment to maintaining an end to the
"catcb andreleaSe" of illegal aliens does not abrogate the responsibility of DRO staff too use
judicious discretion in identifying and responding to meritorious health related casess in
m which
detention may not be in the best interest of U.S. lnunigration and Customs Enforcement
ement (ICE).
Aliens Arriving Into DRO Custody
The process for making discretionary decisions is outlined in the attached memorandum of
November 7, 2000, entitled "Exercising Prosecutorial Discretion." Field officers are oot only
authorized by law to exercise discretion withih the authority of the agency, but are expected to
do so in a judicious manner at all stages of the enforcement process.
In situations where s.laff must respond to a pickup request or detainer placed against an adult or
juvenile alien with :asevere medical or psychiatric condition, the Field Office Director (fOD)
should weigh the appropriateness of taking that person into federal custody absent a mandatory
detention requirement. exceptional concern such as national security, or articulable aahger to
the communit.y thatcannpt be addressed by the referring agency. A favorable exercise of
discretion should be considered on a case-by-case basis whenever a medical or psychiatric
evaluation. diagnosis, treatment plan, or other documentation provided by tbereferring agency
indicates the exi!itence of extreme disease or an impairment that makes detention problematic
and/or removal Highly unlikely. Exercising prosecutorial discretion when considering whether
to accept these types of referrals allows DRO to:
•

•

Show compassion and humanitarian concern, when appropriate.

Maxirnizeimpact on enforcement and removal by not deta"ining aliens who are
unable to complete the removal process because of severe illness.

••

Reduce catastrophic health care costs.

•
AILA InfoNet Doc. No. 09111678. (Posted 11/16/09)

Subject: Discretion in Cases of Extreme or Severe Medical Concern

Page :l
The following are some examples of medical conditions that muM trigger or flas a need for

case review and consideratWJo of prosecutorial discretion:
•

•
•
•
•
•
•

•

•

Mvanced chronic conditions with complicatWJDs (e.g.• dialysis wilh liver
disease):
Myamed immuno-compromised diseases (e.g., mY/AIDS. cancer).
Pending/recent organ transplants.
End-stage/terminal illnesses (e.g •• CIlDCef', ~ failure).
Paraplegic.sJmulti-limb amputees eonfmed to wheelchairs.
Multi-degenerative diseases in die very elderly.
Extr¢me meIJlal retardation/mental Bl:nesslmental incompetence.
Blindness.
Significant pregnancy complications.

Alien!! in PRO Custody .
In situations where it is neither practical nor desiralJle to cancel a detainer or deny the pickup of
a seriously ill alien (e.g., high profile case. lack of sufficient documentation), the POD should
take the adult or juvenUe into custOdy and proceed with immigration proceedings and custody
determinations as appropriate under (he law (e.g., parole or release recognizance). The case of
my alien subject to mandatory detention shall be coordinated with \ocal counsel and the
E.xecutive Office of Immigration R~view (EOIR) to eJqJedite proceedings or arrive at a
resolution. The U.s. Public Health Service (PHS) may be consulted wheD additional
information or guidance is needed. to clarify me type and severity of a medical condition br to
identify the special needs of a detainee. The case of any alien released from custody shan be
handled in accordance with policy and procedure for non-detained aliens.

While the ultimate authority to make custody determinations rests with the FOD in rmst cases,
requests for Headquarters assistance to address novel siwali>ns or medical conditions as they
relate to adu1t detainees may be addressed to the Detention Management Division or
Removal Management Division. as appropriate. For minors detained in the custody of ICE.
novel questions should be addressed to the Field Office Juvenile Coordinator (FOJC) or. if
unresolved, to the Headquarters National Juyenile Coordination Unit, due to the vulnerabilities
and special requirements of this population.
Requests for assistance from the Headquarters' Custody Determination Unb: (CDU). Travel
Document Uni!. (TDU), or Air Transportatbn Unit (A'TU) should be accompanied by the
necessary medical documentation and immigration case history to enable headquarters staff to
anive at the best determination or arrangement for the alien,
For questions or concerns regarding t
Detenl:ion Health Care Unit. at (202)

ntact Iay M. Brooks. Chief,
b6

FOR OPFrr fAt USE

I...AW EtJFOHClMENT

S~NN~ Y

ICE07FOIA51539-00092?

AILA InfoNet Doc. No. 09111678. (Posted 11/16/09)

TJVE