Right now, immigration courts’ dockets total over 1.5 million cases nationwide. DHS and their representatives, Office of Principal Legal Advisor (OPLA) attorneys, are thus facing a reckoning of how to best apply the government’s finite resources in prosecuting these cases and fairly enforce civil immigration laws.
An April 3, 2022, memorandum for OPLA attorneys provided some guidance in how to do this, specifically through the appropriate application of prosecutorial discretion. The memorandum goes into effect on April 25, 2022. If used correctly, prosecutorial discretion has the potential to benefit all parties – it can preserve government resources for immigration cases that pose a real threat to our country while allowing low priority, low threat noncitizens relief from immediate removal.
Prosecutorial Discretion is the authority granted to DHS and their representatives to decide what charges to bring and how to pursue each case. Prosecutorial Discretion is not a formal program or benefit offered to noncitizens, however a favorable application of prosecutorial discretion benefits these individuals as it can lead to their proceedings being dismissed or put on hold, while simultaneously freeing up OPLA attorneys to focus on higher priority cases.
The recent memo was published in the context of, and following the guidelines of, the Mayorkas Memorandum, which took effect on November 29, 2021. The Mayorkas Memorandum established a way to categorize noncitizens as “priority” or “nonpriority” cases and provided guidance to OPLA attorneys in the factors to consider throughout their subjective process of categorizing each case – with final determinations going through the Chief Counsel. Through the Mayorkas Memorandum’s classifications, there is a “new analytical framework under which a noncitizen’s enforcement priority classification and DHS’s decision whether to exercise prosecutorial discretion converge” (9).
Within the context of the Mayorkas Memorandum, this specifically means OPLA attorneys determine which noncitizens are top priority for removal proceedings due to their level of threat to national security, public safety, or border security. However, even if a noncitizen appears to meet the criteria establishing them as a threat to national security, public safety, or border security, there are an abundance of mitigating factors that should also be considered by OPLA attorneys before officially designating a noncitizen as a “priority.” Some of these factors include age; lengthy presence in the US; a mental condition that may have contributed to past criminal conduct; a mental or physical condition requiring treatment; impact of removal on family within the US, such as loss of provider or caregiver; eligibility for humanitarian protection or other immigration relief; military or public service by the noncitizen; etc.
The process of applying the Mayorkas Memorandum inherently requires the use of prosecutorial discretion, meaning the OPLA attorneys, under the guidance of Chief Counsel, use their best judgement to decide what action to take in each given case. Noncitizens who are categorized as nonpriority become ideal candidates for favorable prosecutorial discretion, although there are instances in which a noncitizen who has been categorized as a priority by DHS could also be eligible for prosecutorial discretion. OPLA’s preferred forms of prosecutorial discretion are non-filing of a Notice to Appear, so that proceedings are never commenced against a low priority noncitizen, or dismissal of proceedings if the NTA was already filed.
Other potential forms of prosecutorial discretion include administrative closure of proceedings (temporarily pausing removal proceedings); stipulations to issues or relief (agreeing to a form of relief for the noncitizen when applicable); continuances (postponing proceedings to wait for a decision on an application pending with USCIS or another agency); not pursuing an appeal; joining motions to reopen (to allow for a case to then be officially closed); and stipulations in bond hearings (to allow noncitizens subject to detention to be out on bond instead).
If DHS can appropriately exercise prosecutorial discretion, it will preserve the government’s finite resources and ideally lead to more just outcomes for the millions of noncitizens living in our country, especially those who are low priority for removal.