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Albany Legal Blog

Prosecutorial Discretion

On Behalf of | Aug 27, 2021 | Immigration

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“Prosecutorial Discretion”. In my world, these can be two of the most important words to a client with few if any immigration options in the United States. Let me explain.

Prosecutorial Discretion (or “PD” for short) is the authority of, in this case, a federal agency charged with enforcing the immigration law to decide where it should focus its resources and whether or how to enforce, or more often in our cases, not to enforce, the immigration law against an individual. The Office of the Principal Legal Advisor (“OPLA”), an office within U.S. Immigration & Customs Enforcement (“ICE”), is the Department of Homeland Security’s (“DHS”) representative before the Executive Office for Immigration Review (“EOIR”) in exclusion, deportation, and removal proceedings. OPLA relies upon PD (among other things) as a guide to inform some of its decision making.

A simple example of PD is the power of ICE (or even U.S. Citizenship and Immigration Services (“USCIS”) or U.S. Customs and Border Protection (“CBP”)) to initiate or discontinue removal / deportation proceedings. Often times it means that ICE will not issue a Notice to Appear (“NTA”) to a foreign national, which is the document that generally commences removal / deportation proceedings against a foreign national.

Let me give you a real world example. A client walks into my office with a compelling family story and a complex immigration history.  You review his or her case and determine that there are no immediate options for that individual to permanently remain in the United States. Having made that determination, you also determine that this individual has immediate family members in the U.S. (perhaps some of them minor U.S. citizen children, maybe one with a serious medical condition), substantial  community ties, has not been to his or her home country in many years, has worked and paid taxes, is a primary care-giver to a seriously ill relative in the United States, and/or any other number of compelling factors you can come up with. The government has also placed this person in removal proceedings, or is seemingly about to. What do you do?

Historically you might have considered applying to OPLA for PD for your client. What will be the result?  PD does not solve long-term immigration problems. As one of my colleagues in our office will attest, while I am a supporter of PD in many circumstances, I still want to know (or try to figure out) what the long-term solution is for the client because PD is not a panacea and does not necessarily, for example, allow your client to get permanent residence. What it does do is take the heat off your client, sometimes for many years. But it is by no means a cure-all for your client.

During the dark days of the Trump Administration, President Trump, through his minion Stephen Miller, severely curtailed the government’s ability to exercise PD as a discretionary remedy for many foreign nationals. Mercifully, between January and May, 2021, the Biden Administration endeavored to change all that through a series of memoranda (two of which are commonly referred to as the Pekoske Memo and the Johnson Memo) which provided new interim guidelines for immigration enforcement, including providing guidance to ICE and OPLA on prioritizing enforcement actions, custody decisions, the execution of final orders of deportation / removal, and other actions.

Then, in late May, 2021 OPLA issued its own memorandum (commonly known as the Trasvina Memo) specifically directing “all OPLA attorneys … to exercise prosecutorial discretion … at all stages of the enforcement process and at the earliest moment practicable in order to best conserve prosecutorial resources and in recognition of the important interests at stake.”

Immigration lawyers and advocates jumped for joy. Literally. Then, Donald Trump’s legacy reared its ugly head in the form of U.S. District Judge Drew Tipton issuing a preliminary injunction in the case Texas v. United States. The injunction specifically enjoined implementation of the Pekoske Memo and the Johnson Memo nationwide. While the language of Judge Tipton’s decision focuses specifically on detention, the injunction prohibits enforcement and implementation of several sections of the memos, including sections that go beyond custody decisions. On August 23, 2021, the court granted a stay the preliminary injunction until August 30, 2021 “to allow the [United States] time to seek relief at the appellate level.”

And so here we are. Since then OPLA announced that it was suspending its use of the Trasvina Memo as a guide to PD, although its website does indicate OPLA’s “longstanding authority” to engage in PD.

Have I ever mentioned that our immigration system is broken?  Well, it is. PD has been a mechanism to provide individuals with some form of relief (albeit not permanent) when those individuals have no other options (or at least immediate options) to remain in the United States, but their equities suggest that they still should be able to do so. Unfortunately, PD has become subsumed in the politics of immigration reform. For the love of God, let’s work together for some positive change and get rid of the politics surrounding these very humanitarian issues.