The Trump Administration's onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights--there are currently more than 1.3 million noncitizens in removal proceedings.

When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now--after more than four months of deliberation--we have a new DHS memo on prosecutorial discretion.

The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their "prosecutorial discretion" or "PD."

The memo lists "three categories of cases that are presumed to be enforcement and removal priorities" for ICE: (1) National Security-related cases, such as terrorists and spies (or suspected terrorists and spies); (2) Noncitizens apprehended at the border on or after November 1, 2020, or those who were not physically present in the U.S. before November 1, 2020; and (3) Noncitizens who have been convicted of an aggravated felony or who have been involved in gang activity, and who are a danger to public safety.

For cases that are not enforcement priorities, ICE can terminate removal proceedings (so that the person is not deported), release a noncitizen from custody, grant deferred action (which allows an otherwise deportable person to remain in the U.S., perhaps with a work permit), or otherwise decline to prosecute a removal case against the noncitizen.

Not everyone is eligible for PD, and the new memo provides some guidance about who may qualify. Positive factors that DHS will consider in deciding whether to a agree to a PD request include--

a noncitizen’s length of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances of arrival in the United States and the manner of their entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.

Negative factors include the following--

criminal history, participation in persecution or other human rights violations, extensiveness and seriousness of prior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety.

Balancing these factors on a case-by-case basis, DHS will determine whether a particular individual warrants PD. It is important to understand that PD is discretionary, meaning that DHS has a lot of power to determine whether to agree--or not--to a request for PD.

To apply for prosecutorial discretion, each local DHS office should establish a dedicated email address to receive PD requests. Such a system existed during a prior iteration of PD (during the Obama Administration), and so possibly those same mail boxes will be re-activated. In any event, if you want to apply for PD, you can always call the DHS office with jurisdiction over your case and ask for the email address.

Most asylum seekers, at least those with reasonably strong cases, will probably not want PD, which effectively ends the court case without a substantive decision. Such people would rather have the Immigration Judge review the merits of their claim and (hopefully) grant asylum. But for those with weak cases, or who are risk averse, PD may make sense. For one thing, PD avoids the possibility of a removal order and allows the person to remain in the United States (at least until a new Administration comes along and eliminates PD). Also, if an asylum case is Administratively Closed (meaning, the case remains alive, but dormant), the applicant may be eligible to renew his Employment Authorization Document (though at the moment, the policy on this is not entirely clear).

On the other hand, many asylum seekers will be less than thrilled if their Immigration Court cases end with PD. Such people will remain in limbo and the government can--at any time--re-calendar the case and try to remove the person from the United States. Also, asylum seekers with PD cannot travel outside the U.S. and return (even if they have Advance Parole), they cannot petition for family members to join them in the United States, and they cannot get a Green Card or become a U.S. citizen (unless they find an independent path to obtaining those benefits). So while PD may be useful for some applicants, each person will need to weigh the pluses and minuses in their individual cases.

In my own practice, I do not expect to make many PD requests, but we will make a few. We have a couple asylum-seeker clients who are now married to U.S. citizens. DHS previously would not agree to terminate their court cases, but maybe now they will agree (allowing the clients to adjust status). We also have a long-term LPR with two aggravated felony convictions (for very minor stuff, many years ago). I think we can make a good case for her to receive PD. Finally, we have an asylum case that was denied and is currently on appeal. If we lose the appeal, perhaps ICE would agree to deferral of removal, which would avoid the person being deported. While I do not have many clients who will benefit from PD, I am glad it is now available for those who need it.

Originally posted on the Asylumist: