When Can Prosecutorial Discretion Be Used in Immigration Cases?

 Posted on May 11, 2022 in Immigration

With millions of undocumented immigrants in the United States, immigration courts have a significant backlog of cases. Because of this, and in an effort to ensure that immigration officials are properly addressing issues that may affect the safety of people in the U.S., the administration of President Joe Biden has taken action to allow for an increased use of prosecutorial discretion in deportation cases. 

What Is Prosecutorial Discretion?

Immigration officials may evaluate a case to determine whether to enforce immigration laws, and in some cases, they may choose to dismiss a case, pursue an administrative closure, or agree to stipulations such as releasing a person on an immigration bond or continuing a case until a later date. During removal proceedings, a person may request prosecutorial discretion and ask for a case to be dismissed or for other forms of relief.

How Have Policies Related to Prosecutorial Discretion Changed?

In September of 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memo detailing how immigration enforcement actions will be prioritized. On April 3, 2022, Kerry Doyle, the principal legal advisor for Immigration and Customs Enforcement (ICE), issued a memo providing guidance on how prosecutorial discretion may be used in immigration cases. The Doyle memorandum detailed three priorities for immigration enforcement:

• Threats to national security - Immigrants to the United States, including undocumented immigrants or other noncitizens, may be apprehended and deported if they are suspected of engaging in terrorism, espionage, or other activities that may endanger national security.

• Threats to public safety - Criminal conduct may result in an immigrant being detained by immigration officials, who may take action to remove them from the country. When determining whether criminal arrests or convictions may cause a person to be considered a threat to public safety, immigration officials will consider factors such as the severity of the offenses that led to a conviction, a person’s previous criminal record, the harm caused to victims or others in the community, whether a person has received rehabilitation or had convictions vacated or expunged, and whether a person may qualify for humanitarian relief.

• Threats to border security - Immigrants who are apprehended at the border when trying to illegally enter the United States or those who unlawfully entered the U.S. after November 1, 2020 may be prioritized for deportation. However, immigration officials may consider mitigating circumstances to determine whether they should decline to take enforcement actions in these cases.

Contact Our Dallas Deportation Defense Attorney

As the Biden administration continues to take steps to address issues related to immigration, those who are involved in deportation cases or who need to address other immigration-related matters may have options that will allow them to continue living in the United States. In these situations, representation from a skilled attorney can be crucial. At John W. Lawit, LLC, we can help immigrants and their family members determine the steps they can take to prevent deportation, including advising them on whether they can request prosecutorial discretion or whether different forms of humanitarian relief may be available. To get skilled and experienced assistance, contact our Bedford immigration lawyers at 214-609-2242.

Sources:

https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_guidanceApr2022.pdf

https://www.buzzfeednews.com/article/hamedaleaziz/biden-administration-prosecutors-deportation-cases

https://www.ice.gov/about-ice/opla/prosecutorial-discretion