Deportation Update: Biden Has Given Prosecutors More Power To Decide Which Immigration Cases To Drop

On June 4^th, 2021, the interim guidance memorandum (“The Memo”) was publicly released. The reason the memo sent many, like me, into a frenzy was because of the million people currently in immigration court limbo who have just had their lives transformed by these thirteen pages.

This memo is proof the Biden Administration has set a new tone towards immigration. The memo beautifully states, “the government wins when justice is done,” reminding OPLA attorneys they should remain mindful that “immigration enforcement obligations do not consist only initiating and conduction prompt proceedings that lead to removals at any cost.” The memo provides internal direction to OPLA attorney’s regarding the following: 1. Removal Priority Cases, 2. Prosecutorial Discretion, 3. Ability to cancel NTAs, 4. Authority to Administrative closure or Continuance of Proceedings, and 5. Authority to Terminate Proceedings.

(It is important to note this memorandum was released For Official Use Only by the Department of Homeland Security. You should seek the advice and counsel of an attorney to review your case specifically.)

REMOVAL PRIORITY CASES

It is directed that OPLA attorneys prioritize agency resources in the following priority categories:

A. Noncitizens who engaged in or suspect to engage in terrorism or whose apprehension is otherwise necessary to protect the national security of the United States.

B. Noncitizens who were apprehended at the border or port of entry, while attempting to enter unlawfully into the United States after November 1, 2020.

C. Noncitizens convicted of an “aggravated felony” or convicted of an offense related to a criminal street gang and determined to pose a threat to public safety.

The memo also provides a non-exclusive list of civil immigration enforcement and removal decisions where the agency should identify any opportunities of a non-citizens process to ensure just fair and legally appropriate outcomes.

PROSECUTORIAL DISCRETION

This memo provides the green light to OPLA attorneys to exercise Prosecutorial Discretion in proceedings before EOIR. Prosecutorial Discretion (“PD”) is the authority of the agency on whether to enforce, how to enforce, or how not to enforce the law against an individual. There are many forms OPLA may use PD and at any stage of the removal process. The memo provides a wide range of aggravating and mitigation factors to be considered when OPLA is determining to use PD.

Some mitigating factors include the length of residence in the United States by the non-citizen, military service, family or community ties in the United States, manner of entry, prior and current immigration history, employment history in the United States, education in the United States, status as victim, witness or plaintiff in civil or criminal proceedings, whether the individual has potential immigration relief available, contribution to the community and any other compelling humanitarian factors such as the health of the individual.

The relevant aggravating factors mentioned were the criminal history, extensiveness, and seriousness of prior immigration violations. Also, when the noncitizen has a criminal history, OPLA is advised to consider extensiveness, seriousness, and recency of the criminal activity as well as any rehabilitation made by the individual and extenuating circumstance involving the offense and whether the criminal activity supports a determination that the noncitizen poses a threat to public safety. Nevertheless, the appropriate exercise of PD is in the mutual interest of both the person benefiting from the exercise of discretion and the government itself.

NOTICE TO APPEAR

The memo grants the authority to Chief Counsel to use PD and conclude that a legally sufficient appropriately documented administrative immigration case warrants non-filing of a Notice to Appear (“NTA”). Correspondingly, if an NTA is issued but not yet filled with immigration court then OPLA must work with the local Enforcement and Removal Operations (ERO) field office to cancel the NTA and inform the noncitizen.

ADMINISTRATIVE CLOSURE AND CONTINUANCE OF PROCEEDINGS

The ability to use administrative closure as a form of PD for ICE and a tool of docket management for EOIR is limited in certain jurisdictions for certain types of cases. (Including 3^rd Circuit rejecting Castro-Tum (Arcos-Sanchez 3d Cir. 2021), and the 7^th and 4^th Circuit where administrative closure is appropriate for T and V nonimmigrant visa applicants. (Meza Morales 7^th Cir, 2020; Romero v. Barr, 4^th Cir. 2019). OPLA attorneys are encouraged to support motions for a continuance when supported by “good cause.”

DISMISSAL OF PROCEEDINGS

The memo permits particular circumstances where removal proceedings should be dismissed for noncitizens in hope of facilitating two objectives: attacking and reducing court backlog and extraordinary delays in completing court cases and restoring the public confidence in the immigration court system.

A. Military Service Members or Immediate Relatives Thereof

Dismissal of proceedings can be appropriate if a noncitizen or immediate relative is a current or former member of the Armed Forces (Army, Air Force, Marine, Coast Guard, Space Force, and member of reserve component) who was honorably discharged

B. Individuals likely to be granted Temporary or Permanent Relief

If the noncitizen has a viable avenue available to legalize their immigration status outside of removal proceedings, whether temporary or permanent, it is appropriate to dismiss proceedings without prejudice to allow the noncitizen the ability to pursue such route. For example, a noncitizen who can be eligible for consular processing abroad with a provisional waiver appears eligible for Temporary Protected Status or is a child who may be eligible to pursue special immigrant juvenile status.

C. Compelling Humanitarian Factors

A noncitizen may receive a favorable exercise of PD if there are compelling humanitarian factors that arise. Including noncitizen with serious health conditions, elderly, pregnant, is a minor, is a primary caregiver, or has immediate family suffering from serious physical or mental illness; is a victim of domestic violence, human trafficking or other serious crime, or came to the United States as a child and has lived here ever since.

D. Significant Law Enforcement or Other Governmental Interest

When a noncitizen is a cooperating witness, confidential information, or otherwise significant assisting state or federal law enforcement, it shall be appropriate to dismiss proceedings.

E. Long-Term Lawful Permanent Residents

A favorable exercise of PD should be considered for Lawful Permanent Residents who have resided in the United States for many years, practically when LPR status acquired at a young age to dismiss their case in court absence of serious aggravating factors.

ADDITIONAL GUIDANCE

The memo also details OPLA attorney’s discretion to pursue appeals, discretion to join motions to grant relief or to reopen removal proceedings and entering stipulations; and taking a position in bond proceedings. This memo concludes by stating it serves as interim guidance and that OPLA intends to provide future guidance on the above-mentioned.

This memo is another continuous improvement towards immigration reform. It is evident that the last four years are in the past and a new era in immigration law is well underway.

Contact us. If you have a removal case pending in court and you are searching for an ally to stand with you in court, text us at 619-483-4549 and set up a consultation with one of our litigation warriors to see how we can help you dismiss your case under this new policy.

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