President Biden ordered immigration agencies to review enforcement priorities early on in his administration. There was also a provisional memo which made some changes, but in practice most ICE attorneys have been saying “we’re waiting for guidance” when asked for prosecutorial discretion. Now the new guidance has officially arrived, as of the May 27, 2021 memo titled “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities.”
What is prosecutorial discretion in immigration cases?
The idea of prosecutorial discretion is that the government cannot or should not prosecute every case to the fullest extent of the law. In the criminal context, government lawyers do not always charge people for crimes they believe have been committed, and often agree to plea deals for less severe crimes. The reasons for this are to promote justice, maintain efficient operations, law enforcement goals, and avoid harm to others such as dependent children.
The same is true of civil proceedings like immigration cases. In many ways immigration cases feel like criminal cases but they are technically civil. Immigration attorneys and other officers decide whether to bring immigration charges against people to remove them, take away their green cards, or deport them. They can also decide whether to fight against approval of a case or to concede that it is warranted.
The Trump Administration effectively eliminated discretion by making everyone a priority. This created chaos in the court system and prevented government attorneys from effectively handling routine and non-controversial cases. Now, a new enforcement memo is out and there are new options for people in removal proceedings.
The Biden Administration’s new enforcement priorities
Under the new memo, the Biden Administration is going to prioritize deportations and other actions against the following groups:
- National security threats
- Border security risks
- Public safety risks
The new memo states that enforcement actions against people in these groups are justified without any other authorization. As a result, people with criminal convictions, illegally crossing the border, or putting national security at risk are not likely to get much relief from this memo. However, there are specific types of criminal convictions that matter for immigration enforcement purposes, so not every person with a criminal record is included
These priorities are mostly good news because they mean that most everyone else is not a priority for enforcement. Depending on the particular circumstances of their cases, they may be interested in requesting discretion from the government.
What kinds of discretion can you ask for from immigration?
Prosecutorial discretion relates to all kinds of immigration actions and can occur at all stages of a case. From start to finish, this could include:
- Requesting affirmative benefits for someone who is not in removal proceedings, such as Deferred Action or Parole
- Not issuing a Notice to Appear (NTA) which is the charging document which starts removal proceedings
- Canceling an NTA which has already been issued
- Agreeing to terminate removal proceedings
- Agreeing to administratively close certain cases
- Agreeing that an individual is eligible for the benefit sought and conceding they are eligible for relief
- Providing stays of removal for people who have already been ordered removed
- Agreeing to reopen cases for people with removal orders
In many cases, there will be strategic reasons to ask for different types of relief. Sometimes, people don’t even want to terminate their cases because it could cause other unintended effects. Speaking with an experienced immigration lawyer will be the best way to assess this situation.
What are the circumstances when immigration will generally allow people to terminate removal proceedings?
The new guidelines create certain circumstances where it will generally be appropriate to allow a court proceeding to be terminated. There is no right to terminate, but it will generally be allowed where:
- Military family – a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Armed Forces or National Guard
- Viable immigration options – a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or permanent relief (such as green cards, consular processing abroad, TPS, SIJS, or other benefits)
- Humanitarian factors – there are compelling humanitarian factors present
- Victims of crimes and those assisting law enforcement – the noncitizen is a cooperating witness or otherwise assisting state or federal law enforcement (such as U visas, T visas, S visas, deferred action, or other relief)
- Long-time residents – Long-time permanent residents with close family and community ties
How to request prosecutorial discretion from immigration
The new priorities memo states that each ICE office “should maintain email inboxes dedicated to receiving inquiries
related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use of these mailboxes…” Most likely there will be publicly announced addresses before long, but they are not yet released. Individuals can request relief as well as lawyers, although lawyers may be able to present such a request in the most beneficial way and help strategize about individual cases. There is no need to wait, however, because there are already existing email addresses and other methods of submitting requests to ICE officers.