What is Prosecutorial Discretion FAQ
Under U.S. immigration law, Prosecutorial Discretion (PD) refers to the power that U.S. immigration agencies (ICE, as well as U.S. Citizenship and Immigration Services or USCIS, and Customs and Border Protection (CBP)) to decide where to focus its resources and whether or how to enforce the law against an individual. In practice, PD allows DHS attorneys to decide which cases to focus on and how they want to proceed in individual cases, such as agreeing to remove a case from the immigration court docket through dismissal or administrative closure, or agreeing to stipulations on issues such as relief, bond, or continuances. PD is authority, exercised by the Office of the Principal Legal Advisor, on a case-by-case basis, and does not create a right or entitlement for any noncitizen.
Q: What are examples of the favorable exercise of prosecutorial discretion?
A: In the immigration context the examples of the favorable exercise of prosecutorial discretion include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place
Q: Who Can Request PD?
A: In theory, any non-citizen of the U.S. who lacks lawful immigration status can get PD.
However, non-citizen will want to show some convincing, positive factors in his case that will support positive outcome of his PD request.
Examples include: Length of time in the United States • Military service • Family and community ties in the United States • How and why the person entered the United States • Current immigration status (with “greater consideration” for people who are green card holders) • Work history in the United States • Education in the United States • Being a witness, victim, or plaintiff in a civil or criminal case (a civil case is any lawsuit that is not a criminal case; a plaintiff is the person who starts the lawsuit) • Whether the person is eligible for some kind of immigration relief • Contributions to the community • “Humanitarian” factors, including: • Poor health • Age • Pregnancy • Being a child • Being a caregiver for a seriously ill relative in the United States.
On the other hand, an applicant who has any sort of serious negative factors which will result his PD request in a negative outcome such as: • Criminal convictions BUT ICE attorneys should also consider: • How serious, recent, and how many criminal convictions a person has • Rehabilitation and extenuating circumstances • Length of sentence imposed and served • Age of person when convicted • How long ago the conviction took place • Whether the person has additional convictions or other “criminal activity” • Participation in persecution or other human rights violations • Previous immigration “violations” • Failure to comply with terms of release on bond • Prior unauthorized entries • Prior deportations
Q: When Prosecutorial Discretion can be exercised?
A: Prosecutorial Discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order.
If a non-citizen is not already in deportation proceedings, he should talk to an immigration attorney before talking to ICE. But if ICE is already trying to deport an alien, he can ask for PD at any time—while in front of the IJ, after the judge has already ordered your deportation, or while appealing his case.
However, the government attorney will be more likely to grant PD before needing to prepare for individual hearing before the IJ. ICE officials are supposed to exercise PD as early in the deportation process as possible, to avoid wasting resources. Thus, the chances of receiving PD might be better the earlier alien submit his request.
Q: What are Benefits of Obtaining PD?
A: If a person is in deportation proceedings in immigration court, and is able to apply for PD, the obvious benefit is that it might mean that he will not be deported and his immigration court case will be closed at least temporarily.
But that person will not automatically receive other immigration benefits—such as work authorization—just because he receives PD. Nor will their family members (spouse and children) receive PD through that person.
They will have to independently qualify for any immigration benefit that he requests. For example, if they have already applied for asylum before an Immigration Judge (IJ), are awaiting a hearing or decision, but then request and receive a form of PD called “administrative closure” (meaning the IJ takes his case off of the court calendar for months or years) they might be able to get work authorization based on their “pending” (undecided) asylum application.
If an alien is in deportation proceedings in immigration court, and is able to apply for PD, the obvious benefit is that it might mean that they will not be deported and their immigration court case will be closed at least temporarily.
A: On April 3, 2022, Immigration and Customs Enforcement (ICE) Principal Legal Advisor Kerry E. Doyle issued a memorandum to all ICE Office of the Principal Legal Advisor (OPLA) attorneys providing guidance on exercising prosecutorial discretion (PD) in removal proceedings (Doyle Memorandum).
The Doyle Memorandum implements the Sept. 30, 2021, guidance issued by Secretary Alejandro Mayorkas of the Department of Homeland Security (DHS) (Mayorkas Memorandum). In doing so, the Doyle Memorandum rescinds and replaces the memorandum issued by former Principal Legal Advisor John D. Trasviña on May 27, 2021.
The Doyle Memorandum went into effect on April 25, 2022.
Q: What is the Purpose of The Doyle Memorandum?
A: New Biden administration guidelines that ask U.S. Immigration and Customs Enforcement (ICE) attorneys to play a more proactive role in exercising prosecutorial discretion could make a serious dent in the record backlog of nearly 1.8 million removal cases pending in immigration courts, including those for asylum. By encouraging the more than 1,250 ICE attorneys to focus on high-priority cases, the new guidance could lead many others to be marked as nonpriority and terminated.
The new prosecutorial discretion guidelines will directly affect the lives of many noncitizens. They also hold the potential to improve the integrity of the U.S. immigration system writ large. Unauthorized immigrants who have deep ties to U.S. communities and families would seem to be unlikely to face deportation, while migrants who present a real threat to national security and public safety could be removed faster. And because anyone who crossed the border without authorization since November 1, 2020 is a current enforcement priority, the new guidelines could emphasize recent border crossers’ cases, potentially bringing speedier protections for those who are eligible and swifter resolution for those who are not.
Q: What are the Main Implementations and Guidance of The Doyle Memorandum?
A: The Doyle Memorandum explains how OPLA interprets three enforcement priority areas identified in the Mayorkas Memorandum: national security, public safety, and border security. The Doyle Memorandum defines these terms in the following way:
Priority A: Threat to National Security. A noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security. When determining whether a noncitizen otherwise poses a danger to national security, OPLA attorneys are to consider whether the noncitizen has perpetrated human rights violations in the past, threatening “our strong national interest in welcoming refugees.”
Priority B: A noncitizen who poses a current threat to public safety because of serious criminal conduct. Whether a noncitizen poses such a threat turns on the seriousness of the criminal conduct and a balancing of the totality of the circumstances. OPLA attorneys should consider aggravating and mitigating factors, described in the Mayorkas Memorandum, in their analysis.
Priority C: A noncitizen is a threat to border security if: (a) they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) they are apprehended in the United States after unlawfully entering after November 1, 2020. Threats to border security can also include cases where the noncitizen has a history involving serious immigration benefit fraud or smuggling of noncitizens.
Q: How the Doyle Memorandum directs OPLA attorneys to review their cases?
A: The Doyle Memorandum directs OPLA attorneys to review their cases for indicia that the case falls within one of the three enforcement priorities. If the noncitizen appears to pose a threat to national security, public safety, or border security, the reviewing attorney should classify the case as a priority; otherwise, the attorney should identify the case as a nonpriority. Notably, the Doyle Memorandum requires OPLA attorneys to seek management review solely where they determine a case is a priority or to change a previous priority determination, not where they initially classify a case as a nonpriority.
The Doyle Memorandum then goes on to discuss how OPLA should exercise PD, as early in the proceedings as possible, in six contexts: (1) not filing or canceling Notices to Appear (NTAs); (2) moving to administratively close or continue removal proceedings; (3) moving to dismiss removal proceedings; (4) pursuing appeals; (5) stipulating to issues, joining in motions to grant relief, and joining motions to reopen or remand; and (6) taking positions in bond cases. OPLA attorneys are generally directed to litigate priority cases “to completion,” and only consider exercising PD in response to affirmative requests made by such respondents.
For nonpriority cases, the Doyle Memorandum emphasizes its preference, over all other forms of PD, for not filing an NTA or promptly dismissing cases where an NTA has already been filed in order to “efficiently remove nonpriority cases from the docket altogether.” OPLA attorneys should take such action after a review of the respondent’s Federal Bureau of Investigation fingerprint-based background check. Where a respondent has not yet completed one, OPLA attorneys should require that respondent to do so prior to exercising PD.
In keeping with this emphasis on removing cases from the docket, OPLA attorneys are to move affirmatively to dismiss cases without prior management approval or concurrence from a represented respondent or his or her counsel. Practitioners representing respondents who do not want their cases dismissed from immigration court must be prepared to oppose dismissal in writing in a timely fashion. Cases involving unrepresented individuals also are to be dismissed unless consultation with management, and the respondent concludes that another action would be more appropriate.
OPLA attorneys are otherwise encouraged to exercise PD in the other above-named contexts, keeping in mind the limited resources available to the agency and any compelling factors in an individual case. Cases for which administrative closure may be most appropriate include, for example, where “illness of the noncitizen … currently prevents their participation in removal proceedings to pursue a form of relief not otherwise available to them where the illness is expected to resolve in the foreseeable future.” OPLA attorneys may also consider agreeing to continuances, keeping in mind “more efficient forms of prosecutorial discretion than repeated continuances to accommodate adjudication of any ancillary applications.”
In those cases which OPLA attorneys determine a respondent is eligible for relief and merits discretion, they are encouraged to narrow issues and stipulate to any procedural, factual, or legal issue(s), as appropriate. Importantly, this form of PD is not limited to nonpriority cases – OPLA attorneys are likewise encouraged to exercise such discretion in priority cases, including where a noncitizen appears eligible for mandatory protection from removal via withholding or protection under the Convention Against Torture.
Under the Doyle Memorandum, appellate advocacy should focus on priority cases, “absent a compelling basis to appeal a nonpriority case.” However, OPLA attorneys may continue to reserve appeal in order to ensure a fully articulated, reasoned decision by the immigration judge. Keeping in mind compelling discretionary factors in any given case, OPLA attorneys may take those appeals needed to seek clarity on an important legal issue or correct a systematic legal error but must do so judiciously.
In considering whether to join motions to reopen, OPLA attorneys should focus on cases where noncitizens are moving to reopen in order to dismiss the case and seek relief before USCIS. While OPLA attorneys may join motions to reopen by respondents seeking to pursue newly available relief before immigration court where the attorneys find the noncitizens qualify both under the law and in their discretion, early engagement with OPLA indicates such joinders will be rare.
OPLA attorneys are also authorized to waive the appearance of DHS at certain hearings in non-detained cases, including: (1) master calendar hearings, (2) in absentia hearings where evidence of removability has been submitted to the court or removability has been previously established, or (3) individual hearings on a case-by-case basis. Such waiver of appearance may be warranted where OPLA deems an issue adequately addressed by motion or brief position statement.
The U.S. Supreme Court upheld the Doyle Memorandum.
The Doyle Memorandum was challenged in the U.S. District Court for the Southern District by the States of Texas and Louisiana who argued that the guidelines go far beyond the priorities of past administrations and preventing immigration authorities from “doing their jobs”. On June 10, 2022 The U.S. District Court agreed and issued a Final Judgment vacating the September 30, 2021 Memorandum, Guidelines for the Enforcement of Civil Immigration Law.
On June 23, 2023 The U.S. Supreme Court ruled that Texas and Louisiana lacked the standing to challenge these guidelines in the first place because the States had not shown a direct injury from these enforcement priorities, at least not one that could be redressed by the courts. The vote was 8-1.
Thus, now the Administration and DHS are able to reinstate its strategy on immigration enforcement and can officially begin enforcing these priorities again.
Q: Why PD Is Not Always the Best Option
A: PD will not automatically grant an alien and his family members other immigration benefits – such as work authorization.
A non-citizen will have to independently qualify for any immigration benefit that he requests. For example, if a non-citizen has already applied for asylum before an Immigration Judge (IJ), are awaiting a hearing or decision, but then request and receive a form of PD called “administrative closure” (meaning the IJ takes his case off of the court calendar for months or years) he might be able to get work authorization based on “pending” (undecided) asylum application.
Thus, because the benefits of PD can be limited, it is sometimes better to fight removal in immigration court or file an appeal.
This article is provided for information purposes. Should you have any questions or be interested to learn more about this topic, contact Immigration Attorney Claudine Umuhire Gasana at [email protected] or call us at 281-809-5599.
- American BAR Association, Commission on immigration: Practice advisory: Seeking Prosecutorial Discretion, Last Updated April 2022.
- ICE Issues Clarifying Memo on Prosecutorial Discretion in Immigration Court, Joanna Mexicano Furmanska, Elizabeth Carlson ,Aimee Mayer-Salins, April 21, 2022, cliniclegal.org