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FOIA Submissions and Responses ICE
  • Shoba S Wadhia
On October 14, 2015, I filed a FOIA request to ICE seeking records of individuals processed for prosecutorial discretion pursuant to the now rescinded Johnson Memo. Specifically, the FOIA requested the following information for each individual processed under this memo:
  • Type of discretionary decision (i.e., deferred action, stay of removal, decision to release)
  • Country of birth or citizenship
  • Stage of enforcement at which prosecutorial discretion was processed (i.e., before an NTA was filed, before arrest, etc.)
  • Reasons for a grant or denial
  • Whether individual was an enforcement priority and if yes, whether individual met one of the exception contained in the above memo
  • Whether individual had counsel
  • Whether individual made a request affirmatively or if the request was initiated by ICE
  • Unit/officer responsible for processing request
  • Whether or not individual has family members in the United States
  • Whether or not the individual was or is detained
  • Length of presence in the United States
On November 30, 2015, ICE provided a final response that included a lengthy response in the form of an excel work book. The data set identifies more than 40,000 instances during which prosecutorial discretion was considered based on a snapshot of active cases.

On January 28, 2016, I filed an appeal to ICE indicating that several of the data points requested were not included in the original response. On March 2, 2016, ICE accepted my appeal and remanded my request so that ICE could conduct a search for the data points not included in the earlier response. Of note, this is the first experience I had where ICE accepted my appeal administratively and remanded my FOIA request.
More than one year later, on May 10, 2017, and following follow-up inquiries by email, ICE provided a response to the appeal. ICE shared no additional data but provided a single excel sheet to summarize the data provided earlier and also to explain why certain information is unavailable. As has been a past experience and should the search be complete, ICE does not appear to maintain within its database several factors relating to prosecutorial discretion:
  • Reasons for grant and denial
  • Whether the individual was represented by counsel
  • Whether the individual made a request affirmatively or if ICE initiated a request
  • Unit/officer responsible for processing the request
  • Whether the individual has family members in the United States
  • Length of presence in the United States

This document contains my written requests and appeals to ICE and the excel sheet that accompanied the final letter.
  • FIOA,
  • ICE,
  • CBP,
  • Prosecutorial Discretion
Publication Date
Citation Information
Shoba S Wadhia. "FOIA Submissions and Responses ICE" (2017)
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