Notice & Comment

Prosecutorial Discretion in the Biden Administration: Part 5, by Shoba Sivaprasad Wadhia

In a memorandum dated April 3, 2022, Kerry E. Doyle, head of the Office of the Principal Legal Advisor (OPLA), the attorney arm of Immigration and Customs Enforcement (ICE), issued long awaited guidance guidance to her attorneys regarding an memorandum issued by Secretary Alejandro N. Mayorkas published on September 30, 2021, which took effect on November 29, 2021. This post includes highlights of this memorandum but also encourages earlier readings on this blog (here, here, here and here) and here for earlier thoughts and recommendations on prosecutorial discretion in the Biden administration. A letter from immigration law scholars to the Secretary with recommendations on prosecutorial discretion can found here.

The OPLA Guidance reaffirms the central role of prosecutorial discretion in the immigration system and emulating earlier guidance from 2000 by the former INS Commissioner Doris Meissner, reminds OPLA attorneys that they are “authorized by law and expected to exercise discretion.” The OPLA guidance restates the enforcement priorities outlined in the Mayorkas Memorandum: A) threat to national security; B) threat to public safety; and C) threat to border security.

In elaborating on the national security, Priority A, the OPLA Guidance instructs that when determining if a person “otherwise” poses a threat to national security, OPLA attorneys should include whether the noncitizen has engaged or is suspected of “serious human rights violations.” In examining Priority B, “threat to public safety,” the OPLA guidance emphasizes “the existence of a criminal history alone, regardless of severity, will not necessarily indicate that a noncitizen presently poses a current public safety threat” and then goes on to list the aggravating and mitigating factors of the Mayorkas Memo as well as newly articulated factors that include certain criminal activities as well as favorable factors such as whether the noncitizen is pregnant, postpartum, or nursing; is an LPR (“green card” holder); or if there is an underlying discriminatory motive or retaliation for asserting legal rights, among others.

In examining Priority C, “threat to border security,” the OPLA Guidance emphasizes those arrested at the border while attempting to unlawfully enter after November 1, 2020 as well as those arrested who unlawfully entered after November 1, 2020, while also including other situations such as those who have engaged in serious immigration benefit fraud. Importantly, the OPLA Guidance notes that those using fraudulent documents to flee persecution or solely for employment as well as statements by minors will not ordinarily be a priority. Like with Priority B, the OPLA guidance acknowledges the mitigating factors that may contribute to non-enforcement in a border security case.

In discussing the making of priority decisions, the OPLA Guidance notes the responsibility of OPLA Chief Counsel for the priority enforcement decisions made by OPLA attorneys in their field location.

In a section titled “Enduring Principles of Prosecutorial Discretion” the OPLA Guidance states:

Independent of the guidelines provided in the Mayorkas Memorandum, OPLA attorneys should always keep in mind these enduring principles to guide the exercise of prosecutorial discretion in the preparation and litigation of cases before EOIR. In other words, distinct from any policy framework or articulated priorities, prosecutorial discretion is an inherent part of what OPLA attorneys do every day, a reality that is particularly acute in an era of increasingly constrained resources.

This same section also highlights the key role of OPLA in cases involving pro se respondents or those representing themselves.

In a section titled “Exercising Prosecutorial Discretion,” the OPLA Guidance highlights the key role of OPLA attorneys to exercise PD at all states of the enforcement process. Consistent with earlier guidance, it states the importance of exercising PD “at the earliest moment practicable to best conserve prosecutorial resources.”

In examining “Nonpriority Cases,” the OPLA Guidance notes the decision to not file the Notice to Appear (NTA) or in cases where an NTA has been filed to engage in other choices such as administrative closure, stipulation or continuances. Importantly, the OPLA Guidance states that “OPLA’s strong preference is to efficiently remove nonpriority cases from the docket altogether to best focus resources on Departmental priority cases.” The OPLA Guidance advises OPLA to document instances where an NTA is issued but not filed with the immigration court pursuant to the said section. The author would note the longstanding recommendation by many to consider this choice as the most pivotal one to exercising discretion.

The OPLA Guidance includes important language about the role of OPLA attorneys when moving to dismiss a case, highlighting again the importance of doing so as early in the process as practicable. While the OPLA guidance notes a preference for dismissal over the discretionary tool of “administrative closure” (AC), it also notes the ability for OPLA attorneys to unilaterally request or agree to AC in certain instances.

Throwing me back to my time as an immigration attorney with former INS, the OPLA Guidance also encourages OPLA attorneys to stipulate to relief in nonpriority cases or as a way to narrow issues. The OPLA Guidance also notes that a nonpriority case should be a significant factor for an OPLA attorney’s position on a motion to continue a case. Importantly, the OPLA Guidance notes that the immigration judge is ultimately responsible for granting motions to continue. The OPLA Guidance also includes language on the OPLA’s ability to waive appeal, join in a motion to reopen or agree or stipulate to a bond amount in the exercise of discretion.

The OPLA Guidance is much more closely aligned to the Mayorkas Memo issued on September 30, 2021. This is welcome news. Notably, the language of the OPLA Guidance is consistent with how prosecutorial discretion has been exercised on paper and in practice for many decades. As with every guidance document, the devil will be in the details of how it is implemented. I am hopeful the OPLA Guidance will yield greater discretion at the stage of pre- and post-removal and return the system overall to one that is grounded in equity and the rule of law.

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).

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