Ice Memo on Discretion in Cases of Extreme or Severe Medical Concern 2006
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:, ~'::.' :'::' '.':' '0·· . '. . '. .•• . 0 0". .. ", \ : \: U.S. u.s. Immigration .:l.nd CLlS{CJm~, a.nd CLlS{cm1~. Fnforcenlt~n! Fnforcenlt~n! DEC 11 2006 MEMORANDUM FOR: . ant Directors Assistant Deputy ty Assistant Directors Field OffiCe Office Directors "JO.hfiP~ Torr~es ". ".......... ". ... " . , .. Dll'ector FROM: SUBJECT: I.... .. ~ p,-,ioqin_ Ql ~'- Qr~""'M..&ar~ 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