Anybody involved in, or in danger of being placed into removal proceedings should know that a very important government memo came out last week. Policy Memorandum 21-25, issued by Director David Neal, provides additional guidance to EOIR adjudicators that essentially bolsters and reinforces two earlier memos—the Mayorkas and Doyle Memoranda—that articulated the Administration’s priorities and prosecutorial discretion objectives. This new memo, among other things, reiterates that there are three groups of noncitizens considered civil immigration enforcement priorities:
- Those who pose a threat to national security, such as those engaged in or suspected of terrorism
- Those who pose a threat to public safety, such as individuals charged with serious crimes
- Those who pose a threat to border security, ie., people who were apprehended while trying to enter or those who unlawfully entered the US after November 1, 2020.
Furthermore, the memo encourages EOIR adjudicators (EOIR stands for the Executive Office of Immigration Review—such as Immigration Judges) to first inquire of the parties whether the individual is an enforcement priority. If the individual is not, the Immigration Judge should essentially move things along in a way that is consistent with the government’s protocol in disposing of such cases. This may involve adjudicating requests to dismiss the proceedings pursuant to the government’s request or administratively closing a matter pursuant to a party’s motion.
In short, the memo confirms that prosecutorial discretion is back and here to stay. It is a relevant tool in the immigration arena that should be used to further an “efficient and fair court system.” Judges are encouraged to be supportive of and cooperate with the government (as it works to implement its own objectives) in order to manage their overcrowded dockets in light of finite resources.