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The New Prosecutorial Discretion Weapon in Deportation Proceedings

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The Biden administration is authorizing U.S. Immigration and Customs Enforcement (ICE) prosecutors to consider dismissing certain immigration cases for those who are not threats to public safety, national security, or border security. This memo, issued on April 3, 2022, aligns with the Mayorkas Memorandum, a late-2021 memo from the Department of Homeland Security (DHS) that emphasizes using prosecutorial discretion as the foundational principle for enforcing civil immigration law.

What is Prosecutorial Discretion?

In general legal terms, prosecutorial discretion gives prosecutors the authority in deciding whether to charge someone for a crime and determine the appropriate criminal charges. The Mayorkas Memorandum creates a new framework under which this occurs. At a time when over 1.5 million immigration cases are being handled nationwide, attorneys from the ICE Office of the Principal Legal Advisor (OPLA) are encouraged to be mindful of resource constraints when using prosecutorial discretion.

How Does It Affect Deportation Proceedings?

These OPLA attorneys must use their discretion to prioritize cases that deal with those who fall into one of the three categories above: threats to public safety, national security, and border security. However, this does not mean that these are a requirement for hearing cases involving noncitizens. Instead, OPLA attorneys are encouraged to “focus their efforts and limited resources consistent with the law and ICE's...mission.”

Ultimately, cases deemed “non-priority” may result in a non-filing of the Notice to Appear (NTA) or a dismissal of proceedings if the NTA is already filed. OPLA attorneys may use other forms of prosecutorial discretion if applicable, but the “strong preference” is to efficiently remove these cases from the docket altogether.

Nationwide Immigration Attorneys

The team at Maney | Gordon | Zeller, P.A. handles a wide variety of immigration matters and can help you on your path to pursuing the American Dream. To schedule a free case evaluation, call (800) 708-4399 or fill out this short form. Multilingual services are available.


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