Prosecutorial Discretion Memorandum Issued by DHS

On May 27, 2021, the DHS issued a highly anticipated memorandum for ICE trial attorneys providing interim guidance on enforcement and removal priorities and exercising prosecutorial discretion. The memorandum should allow ICE attorneys more independence, will help cases be resolved more amicably, will enhance efficiency in immigration court, and will hopefully reduce the backlog of cases there, which ballooned to well over 1.3 million cases during the Trump Administration. Already, the ICE trial attorneys working at the Baltimore and Arlington (VA) immigration courts have created email addresses to review requests for prosecutorial discretion.

The memorandum clarifies that military service members and their immediate relatives should be priorities for prosecutorial discretion. It also indicates that individuals likely to receive temporary or permanent relief, those with compelling humanitarian factors, significant law enforcement or government interests, and long-term lawful permanent residents should also be considered when exercising prosecutorial discretion. Humanitarian factors such as serious health condition, old age, pregnancy, being a minor, being a primary caregiver to someone suffering from a significant illness, victims of significant crimes, significant continuous presence in the United States since arrival as a child, or being a party to significant collateral civil litigation are considered to be compelling reasons to exercise prosecutorial discretion. Respondents who were witnesses and confidential enforcements for criminal and civil rights cases are examples of instances where there were significant government interests in exercising prosecutorial discretion.

Prosecutorial discretion could be exercised by government ICE trial attorneys by deciding to not file a charging document to start removal proceedings, agreeing to join a motion on a case, agreeing to postponements, to a dismissal of proceedings, and/or deciding not to pursue appeal when relief is granted by an immigration judge.

The memorandum established enforcement and removal priorities for noncitizens posing threats to national security, noncitizens who were apprehended at the border on or after November 1, 2020, and those who present threats to public safety. Persons engaged in espionage or terrorism activities were defined as threats to national security. Noncitizens convicted of aggravated felonies, convicted of offenses in which an element was participation in a criminal street gang, and individuals over the age of 16 years old who were involved in gangs were defined as threats to public safety.

While most of the enforcement priorities seem reasonable, we find it upsetting that asylum seekers who recently arrived in the United States could be considered priorities for removal. It would have been appropriate to carve out an exception within the memorandum for individuals apprehended at the border who requested credible or reasonable fear. Overall, the memorandum appears to be a significant step forward in adding fairness, compassion, and justice to the immigration system.