A May 27th, 2021, Memo addressed to all Office of Principal Legal Advisor Attorneys (“OPLA” i.e., the prosecuting body of Immigration and Customs Enforcement “ICE”) gives prosecutors greater leeway to decide which cases to pursue in Immigration Court. Prosecutorial discretion is not a phrase exclusive to immigration proceedings, but in this context gives the agency authority to decide how to focus its resources. This includes decisions on whether or how to enforce, or not to enforce, the law against a noncitizen.
The Biden Administration first announced changes to ICE enforcement priorities on January 20, 2021 by concentrating limited government resources to focusing on the following priorities:
- Individuals considered a threat to national security;
- Individuals considered a threat to border security (including individuals who were not physically present in the United States before November 1, 2020); and
- Individuals considered a threat to public safety, which includes:
- Individuals convicted of an “aggravated felony”
- Individuals convicted of a gang offense, or who have, according to OPLA, “actively participated” in a gang after the age of 16.
In the removal defense context, the exercise of prosecutorial discretion can take many forms including the following:
- Deciding whether the issue, reissue, serve, file or cancel a Notice to Appear (NTA);
- Deciding whether to stop, question, or arrest a noncitizen for violations of civil immigration laws;
- Deciding whether to detain or release noncitizens from custody;
- Deciding whether to settle, dismiss, oppose or join in a motion on case;
- Deciding whether to execute final orders of removal; and
- Deciding whether to grant deferred action or parole.
While this memorandum affects all OPLA offices, each office has specific guidance at the local level for implementation of the program. Requests for prosecutorial discretion must be made with the local office.
Positive factors for a request for prosecutorial discretion may include a noncitizen’s length of time in the United States; service in the military; family and community ties to the United States; manner of entry into the country; current immigration status; work history in the United States; education in the United States; eligibility for relief; involvement in litigation as a witness, victim, or plaintiff; and other humanitarian factors.
Negative factors when seeking prosecutorial discretion include criminal convictions; human rights violations; the extensiveness and gravity of prior immigration violations; and fraud or material misrepresentation. Regarding criminal convictions, OPLA attorneys will take into consideration the recency of the conviction, any indica of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of the sentence imposed; and whether subsequent criminal activity supports the notion that the noncitizen poses a threat to public safety.
The memo also specifically highlights dismissal for cases that meet the following criteria:
1. Military Service Members or their Immediate Relatives
Dismissal is appropriate when the noncitizen or his/her immediate relative is an honorably discharged member of the United States Armed Forces.
2. Individuals Likely to be Granted Temporary or Permanent Relief
If the noncitizen has a viable form of either permanent or temporary relief which can be pursued outside of the immigration court context, dismissal is appropriate. Examples include where the noncitizen is the beneficiary of an approved I-130 and can adjust status in the United States or can apply for an immigrant visa abroad. Other examples include a noncitizen who is eligible to register for Temporary Protected Status (TPS) or Special Immigrant Juvenile Status (SIJS).
3. Compelling Humanitarian Factors
The agency may be willing to dismiss proceedings where a noncitizen has a serious underlying health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim of domestic violence; human trafficking, or other serious crime; came to the United States as a young child and has since lived in the United States continuously; or is part to significant collateral civil litigation.
4. Significant Law Enforcement or Other Governmental Interest
A favorable exercise of prosecutorial discretion will also be considered where a noncitizen is a cooperating witness or confidential informant or is otherwise significantly assisting state or federal law enforcement.
5. Long-Term Lawful Permanent Residents
Noncitizens may receive a favorable exercise of prosecutorial discretion if they are lawful permanent residents who have resided in the United States for many years, particularly when they acquired lawful permanent resident status as minors and have shown close family and community ties.
Further, on July 15, 2021, Attorney General Garland issued a decision overruling a 2018 attorney general decision, Matter of Castro-Tum, and restoring the authority for Immigration judges and the Board of Immigration Appeals’ ability to administratively close cases nationwide. Administrative closure is a process by which cases are placed on a temporary pause often to allow noncitizens to await adjudication of out-of-court applications by agencies such as the U.S. Citizenship and Immigration Services.
If you have a case before the Immigration Court and believe the above guidelines could help with your case, give our offices a call to set up an appointment with one of our trusted attorneys today. At Wilner & O’Reilly, APLC, we offer free first time consultations at our offices in Orange, Fresno, Riverside, Sacramento, San Bruno, and San Diego, California, as well as in Salt Lake City, Utah, and Boise, Idaho.
ABOUT THE AUTHOR(S)
LAUREN M. FLORES – ASSOCIATE ATTORNEY
Lauren M. Flores is an associate attorney at Orange Office of Wilner & O’Reilly, APLC. She is a native of Compton, CA and a proud daughter of an immigrant father. Her primary and secondary education took place in the neighborhoods of Huntington Park, South Central, and Boyle Heights—she has a special affinity for these communities. She graduated from Brigham Young University where she earned a Bachelor of Arts in Journalism with Minors in Spanish, Editing, and International Development. She received her Juris Doctor from the J. Reuben Clark Law School at Brigham Young University. During her time in law school, she served as an associate editor, lead editor, and finally executive editor for the Brigham Young University Education and Law Journal. She is passionate about education and furthering the opportunities for inner city youth to have access to higher education.
KELLY S. O’REILLY – FOUNDING PARTNER
Kelly O’Reilly is a founding partner with Wilner & O’Reilly, APLC, and a former Immigration Officer with Citizenship and Immigration Services in Los Angeles and Orange County. With over 18 years working as an immigration attorney, he is an expert in all facets of Immigration Law and one of the best immigration attorneys serving Orange County and Riverside County. A native of Fresno, California, Mr. O’Reilly received his law degree from the University of La Verne, College of Law and his Bachelor of Science degree from Brigham Young University. A former missionary in Hong Kong, Mr. O’Reilly has a great love of Chinese culture and is conversant in Cantonese.