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Most Prosecutorial Discretion Requests Will Be Rejected Under New Memo

| Oct 22, 2018 | Policy Memos

Early this month, BuzzFeed News obtained an internal government memo relating to the exercise of prosecutorial discretion by immigration prosecutors. Dated August 15, 2017, the memorandum provides specific guidance to government attorneys who work for the Office of the Principal Legal Advisor (“OPLA”). These attorneys, who represent Immigration and Customs Enforcement (“ICE”), are charged with prosecuting deportation/removal cases in court and carrying out the Department of Homeland Security’s enforcement priorities.

Less than ten pages long, the memo is a stark foil to previous Obama-era memoranda liberalizing the use of prosecutorial discretion. It not only reverses years of previous practice but implements strict guidelines that significantly curtail government attorneys from administratively closing, dismissing, or declining to prosecute cases. The instructions make clear that “prosecutorial discretion is an act of administrative leniency; it is not an entitlement.” As such, the memo dispenses with any formalized system of entertaining requests, indicating that government attorneys “will no longer be required to monitor or use email inboxes dedicated solely for the submission of requests for prosecutorial discretion”-a mechanism widely used under the Obama administration. In short, immigration prosecutors can practically ignore those emails and generally turn a blind eye to requests that do not fall within the rare set of cases specified in the memo.

Under the new regime, cases already in the system should ordinarily be litigated to completion absent 1) written affirmative notice by ICE leadership that it will not expend resources on a case or 2) the agency issuing the NTA does not object to an exercise of prosecutorial discretion. Cases that “may merit particularly careful consideration” include:

  • Member or immediate relative of a military service member
  • Clearly Approvable and Meritorious Benefit Applications
  • Extraordinary Humanitarian Factors
  • Significant Law Enforcement Benefit

Reading between the lines, it appears that unless your matter involves any of the four factors listed above, prosecutorial discretion will not be exercised.

Another alarming directive in the memo regards cases that were previously administratively closed under prosecutorial discretion. Government attorneys are instructed to review all such cases to determine whether it is still appropriate for the case to remain closed in light of the administration’s current enforcement priorities. The new priorities are currently the following:

  • Aliens described in sections 212(a)(2), (a)(3), and (a)(6)(C), 235(b) and (c) and 2377(a)(2) and (a)(4) of the Immigration and Nationality Act
  • Aliens who have been convicted of any criminal offense
  • Aliens who have been charged with any criminal offense that has not been resolved
  • Aliens who have committed acts which constitute a chargeable criminal offense
  • Aliens who have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency
  • Aliens who have abused any program related to receipt of public benefits
  • Aliens who are subject to a final order of removal but have not complied with their legal obligation to depart the United States or
  • Aliens, who in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Taken literally, these priorities unfortunately encompass practically anybody here out of status and especially individuals who have charged with criminal offenses, even if not convicted. The memo essentially prods government attorneys to review cases and file motions to recalendar cases already taken off the docket.

In reality, government attorneys are scrupulously adhering to the memo. Not only have immigration attorneys seen previously closed cases resurrected but more importantly, a vast majority of prosecutorial discretion requests rejected. This is unquestionably the most restrictive climate we have witnessed in twenty years. If you are or are in danger of being placed into immigration removal proceedings, you need an attorney.

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