Updated Guidance Encourages DHS Attorneys to Timely Exercise Prosecutorial Discretion

On April 6, 2015, the Acting Principal Legal Advisor for the U.S. Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA), Riah Ramlogan, issued a memorandum to OPLA attorneys relating to the exercise of prosecutorial discretion.  The purpose of the memorandum is to provide additional guidance on pending removal proceedings involving individuals who may fall outside of the revised Department of Homeland Security (DHS) enforcement priorities communicated by DHS Secretary Johnson on November 20, 2014.

In late 2011 and 2012, OPLA attorneys performed a review of cases pending on the Executive Office for Immigration Review (EOIR) court dockets, exercising prosecutorial discretion in certain cases that did not meet enforcement priorities.   The OPLA memorandum encourages DHS personnel, including OPLA attorneys, to continue to prioritize removal assets consistent with the directive from Secretary Johnson on November 20, 2014.

The memorandum states that OPLA attorneys should continue to review their cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities.  OPLA is encouraged to generally seek administrative closure or dismissal of cases it determines are not priorities.  OPLA attorneys are directed to also review available information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances are present that may warrant the exercise of prosecutorial discretion.  Notably, the memorandum states that prosecutorial discretion may encompass actions beyond offers for administrative closure or dismissal of the case, including waiving appeal, not filing Notices to Appear, and joining in motions.  Therefore, even cases that might not warrant a dismissal or administrative closure may receive some form of positive discretion from OPLA attorneys.

Respondents are encouraged to submit requests for prosecutorial discretion in advance of immigration court hearings, so that prosecutorial discretion issues can be resolved prior to the court hearing in order to conserve docket time.  OPLA attorneys are also urged to timely review these requests and to file motions to administratively close or dismiss cases in advance of the next hearing.  The memorandum states that OPLA attorneys should review cases, including those where a respondent has not submitted a request for prosecutorial discretion,  prior to all scheduled hearings, including master calendars, to determine whether the case falls within the priorities.  OPLA attorneys should be prepared to inform the court of DHS’s position on each case during those hearings.

In cases involving detained respondents, the memorandum instructs OPLA attorneys not to seek administrative closure while the respondent is in DHS custody.  If prosecutorial discretion is to be exercised in a detained case where the alien is not subject to mandatory detention, in consultation with ERO, the respondent must be released prior to administrative closure.  In cases where a detained individual is subject to mandatory detention, if the exercise of prosecutorial discretion is warranted, the alien may only be released after a motion to dismiss proceedings has been granted by EOIR.

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