Call Us Now
Email Us Now
What Is Prosecutorial Discretion?
A reminder that elections do matter: In a May 27, 2021 Memo, Pres. Biden’s ICE Director, John Trasviña, announced the re-introduction of ICE’s prosecutorial discretion program (PD for short), which could potentially cancel or close millions of deportation cases currently pending in immigration court.
The PD program is an artifact of the previous Obama Administration, but in 2017 became an early casualty of Donald Trump’s legal campaign against immigrants. The Biden Administration understands that it faces a calamitous situation in the immigration court system. Under Donald Trump, the immigration court caseload ballooned to over one million cases from just over half a million cases.
The court system simply could not manage this overwhelming number. These challenges were compounded by COVID, where the immigration court system essentially shut down for an entire year. Shrinking this number significantly is the only way to restore sanity to the immigration court system.
There’s little doubt also that the Biden Administration is looking over the horizon to 2022 and 2024, with the anti-immigrant right-wing willing to do whatever it takes to seize elections and capture Congress and the White House, and that this may be the last best chance for millions of immigrants and their families facing deportation and family separation.
How Does Prosecutorial Discretion Work in Immigration Court?
Pres. Biden’s version of the PD program operates in the following areas of ICE prosecution in immigration court:
- Whether to start a removal case against a non-citizen (i.e., issue a Notice to Appear)
- Whether to cancel or suspend a deportation case, either by an order of dismissal or where available, administrative closure
- Whether to request a continuance to obtain evidence or prepare a request to close out a case
- Whether to join a motion for an immigration benefit to prevent deportation, or to reopen a previously decided case to apply for relief from removal.
- Whether to oppose release from immigration detention while a deportation case is pending, and whether to ameliorate the conditions of release (e.g., reporting requirements, ankle monitors)
What Factors Will Ice Consider to Exercise Prosecutorial Discretion in My Immigration Court Case?
The Trasviña Memo sets out the following positive factors in support of PD:
- Length of time in the U.S.
- U.S. military service; family and community ties in the United States
- Manner of entry and reason non-citizen entered the U.S.
- Current legal immigration status (especially for permanent residents)
- Work history in the U.S.
- Education in the U.S.
- Serving as a witness, victim, or plaintiff in a civil or criminal case
- Potential eligibility outside of immigration court, either before USCIS or the U.S. consulate, for an immigration benefit
- Positive community involvement
- Other humanitarian factors (health, age, pregnancy, children, caregiver for a seriously ill U.S. relative)
On the other side, the Trasviña Memo sets out the following negative factors against the favorable exercise of PD:
- Criminal convictions, in light of seriousness, recency, and number of criminal convictions, proof of rehabilitation and extenuating circumstances
- Length of criminal sentence imposed and time served
- The age when convicted
- The overall history of misconduct and wrongdoing
- Participation in acts of persecution or other human rights violations
- Previous violations of immigration law
- Failure to comply with terms of release on bond
- Past illegal entries
- History of deportations
Should I Request Prosecutorial Discretion to Stop My Immigration Court Deportation Case?
Whether to request PD is more complicated than it seems. It depends on numerous considerations. In some cases, obtaining prosecutorial discretion can get a non-citizen out of court and thereby allow them to apply for permanent residency were undocumented or U.S. citizenship if a legal permanent resident. In other cases, the immigration court is the only venue to resolve a non-citizen’s immigration status, and getting out of immigration court could actually make things worse, meaning a future in limbo without work authorization or the option to travel abroad and return to the U.S.
For those already in removal proceedings, the location (“venue”) of their immigration court is a critical consideration. Depending on the federal circuit, some non-citizens will be able to request administrative closure or dismissal, while in others, only dismissal. Each provides its benefits and limitations, and the reasons for the differences in availability are complicated.
Under Trump, the suspension of immigration court cases under administrative closure was suddenly declared unlawful by the Attorney General and BIA in Matter of Castro-Tum and Matter of S-O-G- & F-D-B-. At the stroke of a pen, immigration judges, even were ICE and the non-citizen was in complete agreement, could not temporarily close out a case, but would be forced to proceed, even where relief was pending with USCIS, but due to agency backlogs, was not immediately available.
This overloaded the court calendars added to the utter chaos in the immigration court system. Since then, however, several federal circuit courts have determined that this Trump-era rule was itself unlawful, and in those circuits, administrative closure is now permitted.
In the 9th Circuit, where we practice, administrative closure remains forbidden. However, an order of dismissal, meaning not the suspension of removal proceedings, but rather the cancellation of those proceedings altogether, has remained available, although rare, because it requires ICE to move the immigration court to dismiss the case, based on DHS’s assertion that circumstances have changed since the issuance of the notice to appear to such an extent that continuation is no longer in the Government’s best interest.
Under the Trasviña Memo, however, ICE prosecuting attorneys have been encouraged to dust off this regulation and apply it where administrative closure is unavailable. This would mean that where administrative closure is available, like in the federal 3rd Circuit, a case could be suspended without resort to a motion to dismiss.
However, in the 9th Circuit, where a dismissal would constitute the exclusive means of exercising prosecutorial discretion to halt removal proceedings, non-citizens would face the prospect of their deportation case ending altogether.
Dismissal in lieu of administrative closure would offer significant benefit to non-citizens eligible for immigration benefits outside of court. Adjustment applicants in removal proceedings married to U.S. citizens, or who are the parents or minor children of U.S. citizens, or who are special immigrant juvenile or VAWA self-petitioners, could rightly move forward with their cases in front of USCIS free from the looming threat of deportation, as could U visa applicants, and terminated conditional legal permanent residents applying before USCIS for an I-751 waiver.
Dismissal would also in some cases permit a legal permanent resident who is otherwise eligible to file for citizenship to end their immigration court proceedings and apply for naturalization, whereas administrative closure would not.
In other cases, administrative closure may be preferable to outright dismissal, particularly where an undocumented non-citizen has prioritized maintaining employment authorization and is applying for cancellation of removal under INA 240A(b). Where the applicant has work authorization under a pending cancellation of removal application, dismissal of the removal proceedings would render that cancellation application no longer pending, thereby eliminating that 42B application as a basis for ongoing work authorization.
On the other hand, a cancellation of removal applicant with employment authorization could continue with that authorization even under administrative closure, as the cancellation of removal application would remain pending and continue to serve as a basis for work authorization.
Seeking dismissal of removal proceedings however is not a panacea, particularly where the immigration court is the sole venue to resolve a non-citizen permanent resident’s immigration status. This is particularly true in matters involving accusations of marriage or immigration fraud, where a waiver of the fraud under INA 212(a)(6)(C)(i) is sought under INA 237(a)(1)(H), or where USCIS has terminated conditional LPR status under INA 216A for a non-citizen who acquired status through marriage to a U.S. citizen or legal permanent resident.
Only the immigration court can effectively resolve these matters, and so dismissal or administrative closure would keep non-citizens in limbo, leaving them both at risk when traveling abroad and ineligible to qualify for naturalization to U.S. citizens.
How Do I Apply for Prosecutorial Discretion in Immigration Court?
For now, non-citizens will be required to make requests in writing to the local ICE OPLA prosecuting the removal case. Based on the Trasviña Memo and discussion with the local Chief Counsel for San Francisco, ICE attorneys will not be initiating PD decisions.
Do I Need a Lawyer to Apply for Prosecutorial Discretion in Immigration Court?
The evidentiary requirements to prove PD eligibility are significant and are analogous to the in-depth and voluminous preparation of cancellation of removal application, including sworn declarations under penalty of perjury, and other detailed corroborating evidence establishing the favorable factors and addressing the negative consideration set forth above.
ICE prosecuting attorneys will likely be looking for:
- Employment and income documentation
- Medical records
- Psychological evaluations
- School records
- Supporting declarations of good moral character
- Rap sheets
- And court records
- As well as country condition reports
- Along with a legal analysis as to the non-citizen’s qualifications for PD under the standards set forth in the Trasviña Memo
In my opinion, if you or someone you know is facing deportation, consulting with an experienced immigration lawyer to navigate these changes is imperative.
The Law Offices of Daniel Shanfield will continue to monitor these developments for the benefit of our clients. Please contact our office if you have any questions about any deportation matter.