ICE Issues New Prosecutorial Discretion Memo

April 8, 2022

On April 3, 2022, Immigration and Customs Enforcement (ICE) Principal Legal Advisor issued a memorandum to the Office of the Principal Legal Advisor (OPLA) attorneys outlining their office’s enforcement guidelines and their exercise of prosecutorial discretion. The memorandum takes effect on April 25, 2022 and rescinds prior prosecutorial discretion guidance.  

Prosecutorial discretion is one remedy to address the overwhelming backlog of cases in front of Immigration Courts nationwide, estimated at over 1.5 million. It allows government attorneys to independently evaluate cases to determine whether they are enforcement priorities and, for cases that are not, potentially remove them from the courts’ docket. While prosecutorial discretion is not a formal program or benefit offered by ICE, like other government attorneys, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with any issued guidance. 

The following enforcement priorities were outlined in a recent memorandum issued by the Secretary of Homeland Security: 

  • Priority A – Threat to National Security. A noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security, is a priority for apprehension and removal. 
  • Priority B – Threat to Public Safety. A noncitizen who poses a current threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal. Determining whether a noncitizen poses a current threat to public safety requires an assessment of the individual and the totality of the facts and circumstances. 
  • Priority C – Threat to Border Security. A noncitizen who poses a threat to border security is a priority for apprehension and removal. A noncitizen is a threat to border security if: (a) they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) they are apprehended in the United States after unlawfully entering after November 1, 2020. There could be other border security cases that present facts that warrant enforcement action. In each case, there could be mitigating or extenuating facts and circumstances that militate in favor of declining enforcement action. 

Cases that do not fall into one of the above categories may be terminated or administratively closed. Other forms of prosecutorial discretion may include: agreeing to certain forms of relief, agreeing to a continuance, or agreeing to a joint in a motion to reopen where relief is available before USCIS and the order of removal is the only obstacle. 

Please contact the attorney at LHSCD working on your case if you have any questions about prosecutorial discretion and its application to your case. Or, to schedule a consultation with one of our attorneys, please proceed to our Consultation Request Form. 

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