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:
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.