©Attorney Farhad Sethna, 2021
As background, prosecutorial discretion under the Department of Homeland Security is essentially a determination by DHS as to which aliens it is going to prosecute and which aliens it would refrain from prosecuting or stay immigration removal proceedings against such aliens.
Pursuant to the Biden administration’s direction for review of immigration matters, the USICE, the primary immigration related enforcement arm of the Department of Homeland Security issued a memorandum on May 27, 2021. That memorandum is titled “Interim guidance to OPLA attorneys regarding civil immigration enforcement and removal policies and priorities”. The memo is authored by John V. Trasviña, principal legal advisor.
I have attempted to summarize some of the salient features of the interim guidance below.
First of all, as background, on February 18, 2021, ICE acting director Tae D. Johnson issued an ICE directive, setting forth the enforcement and removal priority of cases falling under ICE jurisdiction to the following three categories which are priorities for removal:
- National security
- Border security
- Public safety
The interim guidance builds on this ICE directive and reaches back to prior authorization of prosecutorial discretion which took place under the Obama administration. Briefly, the interim guidance directs ICE offices to exercise discretion in the following circumstances:
- Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;
- Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
- Deciding whether to focus resources only on administrative violations or conduct;
- Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;
- Deciding whether to detain or release from custody subject to conditions or on the individual’s own recognizance;
- Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the
issues in dispute through stipulation, or pursue appeal in removal proceedings;
- Deciding when and under what circumstances to execute final orders of removal; and
- Deciding whether to grant deferred action or parole.
This list of course is not exhaustive, and ICE may choose to exercise discretion even on a matter which is not in the above categories.
Further, ICE may explore the possibility of applying to prosecutorial discretion “at each stage” of the prosecution spectrum – that would be all the way from pre-issuance of an NTA up to and including appeals at the federal level.
Most critically, ICE must consider relevant factors which would either support or work against a grant of prosecutorial discretion. Factors which support a grant of prosecutorial discretion include the following:
A noncitizen’s length of residence in the United States;
- Service in the U.S. military;
- Family or community ties in the United States;
- Circumstances of arrival in the United States and the manner of their entry;
- Prior immigration history;
- Current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances);
- Work history in the United States;
- Pursuit or completion of education in the United States;
- Status as a victim, witness, or plaintiff in civil or criminal proceedings;
- Whether the individual has potential immigration relief available;
- Contributions to the community; and
- Any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.
Likewise, as you can imagine, relevant negative factors would include:
- Criminal history;
- Participation in persecution or other human rights violations;
- Extensiveness and seriousness of prior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE);
- Fraud or material misrepresentation.
Further, there are some mitigating factors to a prior criminal history, including but not limited to
- The extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation;
- Extenuating circumstances involving the offense or conviction;
- The time and length of sentence imposed and served, if any;
- The age of the noncitizen at the time the crime was committed;
- The length of time since the offense or conviction occurred; and
- Whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety.
As the reader can imagine, these factors are likewise not a complete dispositive or exhaustive list. These factors are not an exhaustive list. Rather, ICE must exercise discretion “on a case-by-case basis considering the totality of the circumstances.”
How must a request for prosecutorial discretion be filed:
ICE offices must set up an email inbox pursuant to §9 of the interim guidance. Applications for prosecutorial discretion may be filed with that particular inbox which is monitored by the ICE office which has jurisdiction over the geographic area that the alien resides in.
Can courts still grant administrative closure?
The answer appears to be yes. The ICE attorneys “retain authority to handle pending cases on EOIR’s (the immigration court) docket by deciding whether to agree to a continuance for “good cause shown” under 8 C.F.R. §1003.29, see also Matter of L-A-B-R-, I&N Dec. 405 (A.G. 2018), and whether to seek, oppose or join in a motion for dismissal of proceedings pursuant to 8 C.F.R. §1239.2(c).
Briefly, this means that yes, the ICE attorneys do have the ability to accede to a motion for continuance or even a motion for dismissal (most likely, without prejudice), which means that ICE can reinstate proceedings at any time based on changed circumstances.
Which individuals should be granted administrative closure?
Under Section V of the interim guidance, at Point 2, dismissal of cases should be granted in situations which include the availability of other relief such as an approved Form I-130, petition for alien relative, or an unlawful presence waiver, temporary protected status, or SIJS (special immigrant juvenile status).
Additionally, a case may merit dismissal in the cases of:
- Military service members or immediate relatives.
- Compelling humanitarian factors
- Significant law enforcement or other governmental interest
- Long-term lawful permanent residents
LIMITATIONS OF THIS ARTICLE
Please note – this article is not intended to be a recitation of the full and complete 13 page interim guidance that was issued on May 27. Rather, it is a summary only of pertinent sections, specifically related to the application of prosecutorial discretion both in prosecuting a case, as well as in either administrative closure or dismissal without prejudice. For further guidance, please stay tuned to this blog!
© Farhad Sethna, Attorney, 2021
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.