• Ryan Driscoll

Possible Relief in Immigration Court: Prosecutorial Discretion

The immigration court backlog is nearly 1.4 million cases, as of June 2021. That is a huge number, but to put it in perspective, there were only 14, 232 cases closed in June 2021. Extrapolated over a year, the court is on pace to close approximately 171,000 cases. At this pace, if zero new cases were added to the court’s docket, it would take approximately eight years to complete all of the existing cases. In reality, the number of new cases filed by the Department of Homeland Security far outpaces the number of cases closed each month.


A way that the new administration has sought to deal with this problem is through prosecutorial discretion (PD). Prosecutorial Discretion is requesting that the court dismisses the case completely or that it administratively closes the case so that it is removed from the immigration judge's active docket. PD can be an option for anyone who has an active case in the immigration court, but it is highly advisable that you seek experienced immigration legal counsel to see if it applies in your case, as an affirmative request would need to be made to the trial attorney to see if they will join a motion to the immigration judge for PD.


PD is a tool available for immigration judges to manage their docket that has been used for decades, but something the Trump administration attempted to eliminate. During the Trump years, quite a bit of litigation surrounded whether PD was available to immigraiton judges. In the end, most U.S. Federal Circuits allowed immigration judges to administratively close cases through the use of PD.


The Biden Administration was elected on the hope that they would help work through the backlog of cases in the immigration court. To do so, the Administration quickly declared that PD was back on the table as an option, and all parties to a case should consider it as an option.


Then, on September 30, 2021, The Department of Homeland Secretary, Alejandro Mayorkas, released a memo that provides guidance for the apprehension and removal of non-citizens from the United States. The memo was sent to the Acting Director of Immigration and Customs Enforcement, Tae D. Jonson.


The memo begins by explaining that prosecutorial discretion is well established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders. In 2012, then Justice Scalia said that “broad discretion is given to immigration officials to decide whether to pursue removal at all.”


DHS says it is now guided by the practical reality that an estimated 11 million people are in the United states who are removable, but DHS does not have the resources to remove them all. So, as a practical consequence, DHS has chosen three broad areas to focus their time and efforts:

  1. National Security threats

  2. Threats to the public safety

  3. Border Security


National Security

A noncitizen who is engaged or is suspected of terrorism or espionage, or who otherwise pose a threat to national security.


Threats to Public Safety

Non-citizens who have been convicted of serious criminal conduct are a priority for apprehension and removal. The memo gives us examples of the areas we should focus on, even though this list is not exhaustive:


The aggravating factors are, for example:

  1. The gravity of an offense of convection and the sentence imposed

  2. The nature and degree of harm caused by the criminal offense

  3. The sophistication of the criminal offense

  4. Use or threatened use of a firearm or dangerous weapon

  5. A serious prior criminal record

All of these factors, if present in your background, would make it difficult for ICE trial attorneys to agree to a PD request, or for an IJ to grant prosecutorial discretion in your case.


However, if your background is free of these aggravating factors, the following are examples of facts that will help ICE trial attorneys agree to a PD request:

  • A person is elderly, or very young

  • A person has been in the US for a lengthy period of time

  • A mention condition that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment

  • Status as a victim of crime or victim, witness, or party in legal proceedings

  • The impact of removal on family in the US, such as loss of provider or caregiver

  • Whether the noncitizen may be eligible for humanitarian protection or other immigration relief

  • Military or other public service of the non citizen or their immediate family

  • Time since an offense and evidence of rehabilitation

  • Conviction was vacated or expunged


The broader public interest is also material in determining whether to take enforcement actions. And the personnel of ICE should evaluate the individual and the totality of the facts and circumstances and exercise judgment accordingly. THE OVERRIDING QUESTION IS WHETHER THE NONCITIZEN POSES A CURRENT THREAT TO PUBLIC SAFETY.


Border Security:

Border Security is focused on removing noncitizens who are apprehended at the border or port of entry while attempting to unlawfully enter the US, or if they are apprehended in the US after unlawfully entering after November 1, 2020.


However, there could be mitigating or extenuating facts and circumstances that militate in favor of declining enforcement action. The trial attorneys and OPLA should evaluate the totality of the facts and circumstances and exercise their judgment accordingly.


What is the effect on my Employment Authorization Document if my case is administratively closed?

One important consideration to make when deciding whether to pursue a request for prosecutorial discretion is whether your client has an employment authorization document (EAD). Under certain circumstances, EAD eligibility will continue, even if administrative closure is granted on the case. For instance, where an asylum, cancellation or AOS application is pending. 8 C.F.R. §§ 274.a.12(c)(8), (9), or (10) See also, AILA Doc. No. 12072351.


Please contact us at Sojourner Law if you would like to schedule a consultation regarding whether prosecutorial discretion would be a possible relief in your immigration court case.


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