Statutes of Liberty: We Explain Prosecutorial Discretion and Why It’s a Huge Win

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Editor’s note: Stay tuned for part II of “An Asylum Case From Two Perspectives” next time!

In American society, we frequently hear about prosecutorial discretion in the context of criminal cases. In almost every election season, we hear about prosecutors who are more interested in going after defendants who commit major crimes instead of low-level offenses.

However, you may not know that prosecutorial discretion also exists in the immigration context when it comes to deportation proceedings. In immigration land, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) acts as prosecutors in deportation proceedings. OPLA has technically always had the discretion to dismiss cases or agree to specific kinds of relief from deportation, but in the past few years we saw very little discretion coming our way from the OPLA offices.

However, on May 27, 2021, immigration attorneys and noncitizens alike received a gift from John D. Trasviña, the Principal Legal Advisor at ICE, in the form of a memorandum authorizing various types of prosecutorial discretion in deportation cases. In line with President Biden’s Civil Immigration Enforcement Policies and Priorities executive order, this memorandum makes the most serious cases a priority for continued deportation, whereas simpler cases are no longer a priority and may be considered for prosecutorial discretion.

The memorandum notes certain cases, such as cases involving noncitizens who are a risk to national security, border security or public safety, as priority for continued enforcement and deportation. For example, noncitizens with serious criminal convictions like drug trafficking, fraud and murder will not be eligible for prosecutorial discretion and therefore their deportation cases will continue to completion.

However, prosecutors may now dismiss or temporarily close cases in immigration court if the prosecutors believe that a noncitizen warrants a favorable exercise of discretion after analyzing various factors. For example, prosecutors will consider the length of a noncitizen’s residence in the United States, military service, prior immigration history, and humanitarian factors such as age, health, or being a primary caregiver to an ill relative in the United States.

This resurgence of prosecutorial discretion will act as a reprieve for all parties involved. Over the past few years, the number of deportation cases in the immigration courts ballooned to about 1.3 million. In our experience, the average case takes anywhere from five to eight years to conclude. The immigration courts did not have the staff or resources to handle cases in a timely manner, and the courts were further suffering from the implementation of a quota system during the Trump Administration, which required judges to complete a certain number of cases each day. In some cases, this created unfair results or only a cursory review of a case due to the time constraints that the quota system placed on judges.

Although the OPLA offices are likely flooded with requests for prosecutorial discretion at the moment, the decision to dismiss or temporarily close a case will lead to a lighter load for the prosecutors in the future. Similar to criminal prosecutors or public defenders, OPLA attorneys may handle 50 cases a day in court. Once the number of cases is reduced, OPLA attorneys will have more time to focus on the most serious cases.

Finally, and most importantly from our perspective, prosecutorial discretion is a huge win for our clients. Many clients who are in deportation proceedings have no criminal history and are eligible for relief that is easily pursued before other immigration agencies, but for being in deportation proceedings. Getting our clients out of deportation proceedings, and therefore out of the jurisdiction of the immigration court, will allow many clients to apply for their green cards or other relief before U.S. Citizenship and Immigration Services (USCIS). Cases before USCIS have a much quicker turnaround than those in immigration court. A person applying for a green card in immigration court may wait five years to have the final hearing and receive the judge’s decision to grant the green card, which the same process may only take one or two years before USCIS.

We are already seeing this policy in action at our office. A local OPLA office has agreed to dismiss a client’s case to allow the client to seek a green card before USCIS. Our client is very deserving, and not only will she receive her green card more quickly, but she will also go through a much calmer process before USCIS. We look forward to working with our local OPLA offices on other deserving cases.

As always, we would love to hear your thoughts and we will do our best to respond.