Details on the current status of Prosecutorial Discretion as of September of 2022

We had previously reported on a Texas U.S. District Court order vacating the detailed guidance on prosecutorial discretion issued in late 2021 by DHS secretary Alejandro Mayorkas. We discussed that court order here. In effect, what the court order accomplished was to end the detailed criteria, government attorneys also known as attorneys under the Office of the Principle Legal Advisor, “OPLA” were to review in considering prosecutorial discretion. However, we reported that this did not necessarily mean that prosecutorial discretion was over.

Certainly, OPLA attorneys have recently communicated with immigration attorneys with details about the current state of prosecutorial discretion where they confirmed that prosecutorial discretion continues despite the court order. The government also confirmed that what changed was as we reported, the fact that government attorneys can no longer follow the Mayorkas guidelines that were vacated by the Texas order.

As a result, the government continues to encourage the submission of well-documented requests for prosecutorial discretion in consideration of the following factors:

1. As mentioned, OPLA attorneys are no longer applying the Mayorkas Memorandum, or the subsequent guidance issued on April 3, 2022, that rely on the priority enforcement framework established by the Mayorkas Memorandum.
2. OPLA Attorneys are expected to review cases during the normal course of business for prosecutorial discretion.
3. Formal Prosecutorial Discretion Requests are not required for consideration of a case for such discretion, but they are encouraged and should be submitted as early as possible in the removal process.
4. OPLA Attorneys will independently evaluate cases to determine whether to exercise discretion which may include moving to dismiss or administratively close cases, agreeing to stipulate to issues such as eligibility for relief from removal, bond, continuances, waiving appeal or joining in motions to reopen proceedings.
5. Noncitizens in removal proceedings requesting prosecutorial discretion should make sure that OPLA attorneys have the noncitizen’s criminal history. OPLA attorneys could have access through records obtained from biometrics or fingerprints obtained from the noncitizen when filing an application for relief from removal. Otherwise, the noncitizen should submit to an FBI fingerprint-based background check and provide the results of the check. Regardless, it is encouraged to provide a fingerprint check with any prosecutorial discretion request to facilitate and accelerate the decision-making process.
6. OPLA attorneys are now to use their professional judgement to ensure justice in each individual case while adhering to the enduring principles that apply to all of their activities: upholding the rule of law; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment in individual cases, particularly mindful of OPLA’s limited resources.

As we mentioned in our previous blog post, we expect that the government attorneys will still consider the negative and positive factors in a noncitizen’s life to evaluate if discretion is warranted.

Although it is welcomed news the confirmation that Prosecutorial Discretion is still in effect despite the Texas U.S. District Court order, noncitizens in removal proceedings should still be mindful to have an immigration attorney review their case to determine whether the case is viable for the grant of such discretion or to determine whether it may be better to pursue a claim for relief that could result in permanent legal status.