Biden Administration Announces New Prosecutorial Discretion Policy

Last Updated

June 28, 2021

Background on Biden Administration Immigration Enforcement Priorities

On his first day in office, President Biden revoked former President Trump’s sweeping executive order on immigration enforcement and directed executive agencies to issue new guidance advancing the Biden administration’s values and immigration policies—“protect[ing] national and border security, address[ing] the humanitarian challenges at the southern border, . . . . ensur[ing] public health and safety,” and “adher[ing] to due process of law as we safeguard the dignity and well-being of all families and communities.” That same day, the acting Department of Homeland Security, or DHS, secretary issued a memo establishing three interim immigration enforcement priorities:

  1. National security (related primarily to terrorism and espionage);
  2. Border security (related to noncitizens who entered on or after Nov. 1, 2020); and
  3. Public safety (applying to noncitizens with “aggravated felony” convictions who also met additional criteria).

Immigration and Customs Enforcement, or ICE, subsequently issued interim guidance requiring ICE officials to get pre-approval for enforcement and removal actions against non-priority individuals. However, the ICE guidance expanded the public safety priority category to cover those who pose a threat to public safety and (1) have an “aggravated felony” conviction, (2) have certain specified gang-related convictions, or (3) are at least 16 years old and intentionally participated in gang activity.

May 2021 OPLA Memo

On May 27, 2021, ICE Principal Legal Advisor John D. Trasviña issued a memo to ICE Office of the Principal Legal Advisor, or OPLA, attorneys providing interim guidance on exercising prosecutorial discretion in removal proceedings. The memo discusses six ways for OPLA to exercise prosecutorial discretion, by: (1) not filing Notices to Appear, or NTAs; (2) agreeing to administrative closure or continuances of a noncitizen’s removal proceedings; (3) moving to dismiss removal proceedings; (4) not pursuing appeals; (5) stipulating to issues, joining motions to grant relief, and joining motions to reopen or remand; and (6) stipulating to bond amounts. Generally, the memo encourages OPLA attorneys to focus agency resources on cases that fall within one of the three priority categories, and to exercise prosecutorial discretion in non-priority cases. The memo also lists non-exclusive mitigating and aggravating factors that OPLA attorneys should consider in evaluating requests for prosecutorial discretion.

On the topic of dismissal of removal proceedings, the memo describes five types of cases that “generally will merit dismissal in the absence of serious aggravating factors”: (1) military service members and their immediate relatives; (2) noncitizens likely to be granted temporary or permanent relief, listing as examples those with approved I-130 petitions who are prima facie eligible for adjustment of status or consular processing and those prima facie eligible for Temporary Protected Status or Special Immigrant Juvenile Status; (3) noncitizens presenting compelling humanitarian factors; (4) noncitizens whose cases implicate significant law enforcement or other government interests; and (5) long-term lawful permanent residents.

Regarding motions to reopen, the memo states that further guidance will be forthcoming but that in the meantime “OPLA should continue addressing requests for joint motions to reopen on a case-by-case basis, giving favorable consideration to cases that are not priorities and where dismissal would be considered under [the memo’s section on dismissal].” The week after publishing the interim guidance, OPLA announced a policy on joining motions to reopen in certain cases impacted by the Supreme Court’s April 29 decision in Niz-Chavez v. Garland. The Niz-Chavez decision expanded the group of noncitizens eligible for cancellation of removal by ruling that the NTA “stop-time rule” used to calculate whether a noncitizen has accrued the required years of continuous physical presence or continuous residence was not triggered if the NTA the noncitizen received lacked the time or place of the immigration court hearing—even if the immigration court later provided this information to the noncitizen through a hearing notice. Under OPLA’s Niz-Chavez policy, for 180 days from the date of the Niz-Chavez decision OPLA attorneys will “presumptively exercise their prosecutorial discretion to join or not oppose a motion to reopen filed by” a noncitizen impacted by the Niz-Chavez decision who demonstrates prima facie eligibility for cancellation.

Other Developments Following the May 2021 OPLA Memo

Following the issuance of the prosecutorial discretion memo, OPLA published a webpage providing details for how noncitizens should make prosecutorial discretion requests. The webpage includes email addresses for each OPLA office that noncitizens can use to submit prosecutorial discretion requests.

On June 11, 2021, the Executive Office for Immigration Review, or EOIR, issued a policy memo on the “Effect of Department of Homeland Security Enforcement Priorities.” The memo notes that there are 1.3 million cases pending in immigration court and before the Board of Immigration Appeals, or BIA, and directs immigration judges, or IJs, and the BIA to “use adjudication resources to resolve questions before them in cases that remain in dispute.” The memo suggests that IJs should inquire on the record at hearings whether the case remains a removal priority, whether DHS intends to exercise prosecutorial discretion, and what the respondent’s position is. The memo states that for cases on appeal, the BIA “may solicit supplemental briefing from the parties regarding whether the case remains a removal priority for ICE or whether the parties intend to seek or exercise some form of prosecutorial discretion.”

Practice Tips in Light of Developments in Prosecutorial Discretion Policy

Practitioners should assess cases of clients in removal proceedings to consider whether a prosecutorial discretion request under the agency’s new guidance would benefit the client. While OPLA encourages noncitizens to make prosecutorial discretion requests at the earliest point possible in the case, it is possible to make such requests at any point in proceedings, including in case that are on appeal at the BIA or where a noncitizen wishes to reopen a case with a final removal order.

Practitioners should ascertain and follow the particular OPLA office’s “standard operating procedures” governing prosecutorial discretion requests. The OPLA prosecutorial discretion webpage notes that “[t]he more forthcoming a noncitizen is in submitting information related to his or her request for PD (including information detailing both the equities in the case and potentially negative considerations), the more readily OPLA attorneys will be able to assess the totality of the circumstances and make informed discretionary judgments.”

In addition to making prosecutorial discretion requests with OPLA, practitioners should be familiar with other ICE tools that facilitate individualized review of cases, particularly for individuals who are detained or facing imminent removal. These include the ICE case review process, the ICE Enforcement and Removal Operations, or ERO, Detention Reporting and Information Line, and case assistance requests through the ERO Ombudsman.

Practitioners should stay tuned for future guidance from DHS. Advocates anticipate that the DHS secretary will issue further guidance on completion of his review of immigration policies and practices after which the interim policies discussed in this article may be revised.