ON May 27, 2021, the Biden administration issued a memo entitled “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities.” That memo could benefit so many people who are in deportation or removal proceedings, or are concerned they may be placed in deportation or removal proceedings.
Basically, this memo instructs OPLA attorneys on how and when to exercise prosecutorial discretion. What is OPLA? OPLA means “Office of the Principal Legal Advisor,” which are basically the government attorneys who prosecute deportation or removal proceedings.
They are like trial attorneys or prosecutors.
What is “prosecutorial discretion”? According to the memo, “prosecutorial discretion is the long-standing authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual.” In other words, the discretion to decide if the government will bring removal proceedings against a person, or even drop proceedings if the person qualifies under the memo.
This memo instructs OPLA attorneys to focus primarily on what is called “enforcement and removal priority cases,” and be more flexible and lenient with other types of cases.
According to the memo, there are three categories of cases that are “presumed to be enforcement and removal priorities for ICE personnel” and the government should prioritize agency resources on removing people who fit in these categories:
1. National security. This includes noncitizens who have engaged in or are suspected of terrorism or espionage or are otherwise a threat to the national security of the U.S.
2. Border security. This includes noncitizens who were “apprehended at the border or at a port of entry [like an airport] while attempting to unlawfully enter the U.S. on or after November 1, 2020.”
3. Public safety. This includes noncitizens who have been convicted of an “aggravated felony,” or are members of criminal street gangs.
For other types of cases, ICE and OPLA attorneys may consider whether or not to exercise “prosecutorial discretion,” which includes:
• Deciding whether to assume custody of a noncitizen who is subject to a previously issued detainer. (A detainer is a notice to local law enforcement agencies that ICE wants to assume custody of a person who’s about to be released from jail, so they can be deported)
• Deciding whether to issue, reissue, serve, file or cancel a notice to appear or NTA
• Deciding whether to focus resources only on administrative violations or conduct
• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws
• Deciding whether to detain or release a noncitizen from custody
• Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute, or pursue an appeal in removal proceedings
• Deciding whether to agree to administratively close or continue a case, while the noncitizen pursues other forms of relief
• Deciding when and under what circumstances to execute final orders of removal; and
• Deciding whether to grant deferred action or parole, which is basically an agreement not to deport a person at the present time.
This memo also instructs OPLA attorneys on the various mitigating (favorable) and aggravating (negative) factors they should evaluate on whether or not to exercise prosecutorial discretion. Mitigating or favorable factors include:
• length of residence in the U.S.
• military service
• family or community ties in the U.S.
• circumstances of the person’s arrival in the U.S. and their manner of entry. Did they sneak across the border? Did they enter on a fraudulent visa? Etc.
• prior immigration history
• current immigration status, especially when they are already a lawful permanent resident or green card holder
• work history in the U.S.
• education in the U.S.
• status as a victim, witness, or plaintiff in a civil or criminal proceeding
• whether the person has potential immigration relief available, such as they just married a U.S. citizen, or have a 21-year-old U.S. citizen child, who wants to petition them
• contributions to the community
• 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 U.S. I know many people are caregivers to elderly, sickly people, and this would seem to be a very favorable factor.
There are also several aggravating or negative factors, where OPLA may not be willing to exercise prosecutorial discretion, and instead will continue to go after the person for removal, including:
• Criminal history, participation in persecution or other human rights violation, extensiveness and seriousness of prior immigration violations, or fraud or misrepresentation.
People who believe they may be eligible may request prosecutorial discretion from OPLA attorneys. Even if no request is made, the OPLA attorneys should examine cases themselves and determine whether a favorable exercise of discretion may be appropriate.
I remember during the Obama administration, we had clients in removal proceedings, and the government attorneys called us up, asking if WE would agree to have the case dismissed or closed. They could also join in motions to reopen, re-calendar, or motions for other forms of immigration relief. That’s how prosecutorial discretion could work.
If you are in deportation or removal proceedings, or if you were previously ordered removed, but now have a way to apply for immigration benefits, and you are not one of the enforcement priorities, I would recommend that you consult with an attorney, who can evaluate your case and determine if you could be eligible for relief by way of seeking prosecutorial discretion, which could include reopening your case or having it dismissed, and the like. The attorney could negotiate with the OPLA attorney, or package your request for prosecutorial discretion depending on the circumstances of your case.
This breaking development is great news, as it is a radical departure from the Trump administration, where everybody was considered an enforcement priority, and the government seems to want to deport everybody who had even the most minor immigration violation.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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