Prosecutorial Discretion in the Biden Administration: Part 3, by Shoba Sivaprasad Wadhia
In a memorandum dated May 27, 2021, John D. Trasvina, head of the Office of the Principal Legal Advisor (OPLA), the attorney arm of Immigration and Customs Enforcement (ICE), issued guidance to their attorneys regarding the interim enforcement priorities set form by ICE earlier this year. This post includes some highlights of this guidance but also encourages earlier readings on this blog (here and here) and here for broader thoughts and recommendations on prosecutorial discretion in the Biden administration.
The OPLA Guidance runs through the Interim Memo from then acting Homeland Security Secretary David Pekoske and Acting ICE Director Tae Johnson earlier this year. The guidance reminds OPLA attorneys that “prosecutorial discretion is an indispensable feature of any functioning legal system”—a point I elaborate has existed historically. After reviewing the enforcement priorities set by the Biden administration, the OPLA guidance circles back to a crucial point about the importance of discretion: “OPLA attorneys are expected to exercise their discretion thoughtfully….” This seemingly simple statement is crucial because it is a reminder that using discretion wisely is not only a good policy choice, but also an expectation from the leadership, consistent with language from previous leaders, among them Doris Meissner, former INS commissioner who in 2000 stated: “Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process.”
The new OPLA guidance, like with previous guidance documents, lists the variety of ways discretion may be exercised in the enforcement process, including but not limited to: whether to issue a detainer, issue, reissue, serve, file, or cancel a Notice to Appear (aka charging document, which when filed triggers removal proceedings), and whether to detain or deport, among other actions. The guidance also underscores the importance of exercising discretion at the earliest point possible, important when thinking about the resource component of discretion. In other words, the agency saves resources when enforcement discretion is exercised as early as possible.
The new OPLA guidance also for the first time since the Obama administration defines prosecutorial discretion: “Prosecutorial discretion is the longstanding authority of an agency charged with enforcing the law to decide whether to focus its resources and whether or how to enforce, to not enforce, the law against an individual.” Naming prosecutorial discretion is important both so the officers on the ground and the public know its history and what it is or is not. The new OPLA guidance also includes the choice by an OPLA attorney to assign an attorney in a particular case—such as in the case of a noncitizen minor—as a choice in their discretion.
The OPLA guidance, in the most elaborate way during the Biden administration, lists humanitarian factors OPLA attorneys should consider when making discretionary decision, among them:
[S]ervice 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.
Nearly every factor listed resembles the historical precedent and policy around the humanitarian dimension of discretion. But the specialty is the lack of these factors, at least explicitly, in the previous administration. Where a criminal history exists, the OPLA memo advises attorneys to consider factors that include the recency of the activity, indicia of rehabilitation, time and length of the sentence imposed or served, and age of the noncitizen, among other factors.
The new OPLA guidance also articulates the “mutual interest” of both the government and the noncitizen from exercising prosecutorial discretion—whether a person affirmatively requests it or not—and instructs OPLA attorneys to examine the cases they are assigned for possible protection through prosecutorial discretion.
In a separate section, the new OPLA guidance supports the practice of filing Notices to Appear or NTAs with the immigration court when legally sufficient, but also includes language to support a choice by the Chief Counsel to not to file an NTA in the exercise of discretion. To file or not an NTA is a crucial decision point in the immigration enforcement process and the point at which the government may save the most resources.
The new OPLA guidance also discusses the use of “administrative closure,” an act which ultimately is made by the immigration judge but is often made at the influence of the ICE attorney and has been further hampered by case law. Nevertheless, the new OPLA guidance indicates the authority still held by its attorneys among them agreeing to continue a case.
Finally, the new OPLA guidance addresses the current backlog of 1.3 million cases and the ways prosecutorial discretion can be used to remove cases from the docket through dismissal. The guidance lists the category of cases to be considered for dismissal, among them, where the noncitizen is a military service member or immediate relative thereof; is likely to be granted relief; has compelling humanitarian factors; has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim of domestic violence, human trafficking, or other serious crime; came to the United States as a young child and has since lived in the United States continuously; or is party to significant collateral civil litigation (e.g., family court proceedings, non-frivolous civil rights or labor claims); is a lawful permanent resident (i.e., green card holder); implicates significant law enforcement interests . The new OPLA guidance also discusses the importance of appeals, joining motions, and bond proceedings.
Overall, I am heartened by the expansion of attention to the humanitarian reasons to exercise discretion and the comprehensiveness of the OPLA memo, as it identifies the many stages of enforcement at which OPLA attorneys may use discretion, ranging from the choice to bring charges in the first place, through a decision to appeal. As with every guidance document, the devil will be in the details of how it is implemented. I am hopeful the new guidance results in a robust and inclusive policy for exercises of prosecutorial discretion consistent with law, policy, and humanity.
Shoba Sivaprasad Wadhia is a law professor and immigration scholar at Penn State Law at University Park. She is the author of two books: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press) and Banned: Immigration Enforcement in the Time of Trump, (NYU Press).