DHS Updates Removal Priorities and Returns to the Use of Prosecutorial Discretion

The Principal Legal Advisor for the U.S. Department of Homeland Security (DHS) recently issued Interim Guidance on Civil Immigration Enforcement Policies and Priorities for attorneys handling cases for the U.S. Immigration and Customs Enforcement Office of the Principal Legal Advisor (OPLA). More specifically, this memorandum emphasized the importance of exercising prosecutorial discretion in making civil immigration enforcement decisions.

Enforcement and Removal Priorities

The memorandum directs OPLA attorney to prioritize three main categories of removal cases:

  • National Security Concerns – This category includes noncitizens who have engaged in or are suspected of terrorism, espionage, related activities, or other national security matters.
  • Border Security – This category includes noncitizens arrested at the border or a port of entry while trying to unlawfully enter the U.S. or who were not physically present in the U.S. before November 1, 2020.
  • Public Safety – This category includes noncitizens who have been convicted of an aggravated felony, an offense for which an element was active participation in a street gang, or intentionally participated in an organized criminal gang or criminal organization, and they are a threat to public safety.

Although the memorandum clarifies that these three categories are a priority for immigration enforcement actions, including removal, there is nothing to prevent OPLA attorneys from enforcing any other aspect of federal immigration laws.

OPLA attorneys, however, are to prioritize these categories of noncitizens in taking various immigration enforcement actions, including issuing and executing detainers, issuing or canceling Notices to Appear, stopping, and questioning, and arresting noncitizens for administrative immigration law violations. These priorities also apply to decisions about whether to detain or release someone on their own recognizances, file, settle, or dismiss cases, execute removal orders, and grant deferred action or parole.

General Guidance on Prosecutorial Discretion

Prosecutorial discretion is the authority of a law enforcement agency to decide how to focus its resources, whether or not to enforce, and how to enforce laws against individuals. The exercise of prosecutorial discretion applies at many stages of the civil immigration enforcement process and takes various forms, depending on the circumstances.

Using appropriate prosecutorial discretion in civil immigration enforcement decisions is essential to all legal systems. Among other reasons, prosecutorial discretion can:

  • Preserve limited government resources
  • Create just and fair outcomes in individuals cases
  • Administer federal immigration laws in a thoughtful and sensible manner

The memorandum cautions attorneys to focus less on “winning” removal of immigrants but more on achieving justice for people. They are to use the powers of prosecutorial discretion in their assigned duties to further the security of the U.S. and the just enforcement of U.S. immigration laws.

In determining whether prosecutorial discretion is appropriate in a specific case, attorneys must weigh mitigating and aggravating factors. For instance, attorneys may wish to consider the length of time a person has been present in the U.S., their work history, their education, and their role as caregivers to children or other relatives. Likewise, attorneys may consider aggravating factors, such as criminal history, the severity of prior immigration law violations, participation in human rights violations, and any perpetration of fraud or misrepresentation.

Notices to Appear

Attorneys have prosecutorial discretion not to file a proper and legal Notice to Appear (NTA) in some cases. However, this choice requires attorneys to document the non-filing, remove the NTA from law enforcement databases, and inform the noncitizen affected by the non-filing.

Administrative Case Closure, Continuances, and Dismissal of Immigration Court Proceedings

Finally, the memorandum notes the past usage of prosecutorial discretion to administratively close cases where warranted. While acknowledging the unavailability of this remedy in many situations due to court decisions, the memorandum reminds OPLA attorneys that they still have the discretion to agree to continuances for good cause and dismissal of immigration court proceedings, where appropriate.

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