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Recently the Biden Administration released an important Memo entitled “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities”  This memo encourages Government (ICE or OPLA) attorneys to prioritize cases for removal or deportation and provides numerous ways for the Government to show leniency to a person in deportation proceedings.

This new memo states that the “exercise of prosecutorial discretion, where appropriate, and advance the Department’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.

What cases should ICE or OPLA attorneys prioritize?

(most immigrants do not fall into these categories)

A) Noncitizens who are terrorists or suspected terrorists or whose apprehension is necessary to protect the national security of the United States. 

 B) Noncitizens who entered the US unlawfully AFTER November 1, 2020.

 C) Noncitizens convicted of an “aggravated felony” as defined in the INA, noncitizens guilty of being in a criminal street gang or transnational criminal organization and those who pose a threat to public safety.

What is Prosecutorial Discretion? 

Prosecutorial Discretion (“PD”) is the authority of the Government to decide whether to enforce, how to enforce, or how not to enforce the law against an individual.  PD is possible at any stage of the process because it is in the mutual interest of both the noncitizen in avoiding removal and the government itself in conserving its financial resources for priority cases.  

What can PD range do?

PD can range from ICE or OPLA: 

  1. Agreeing not to detain a noncitizen, 
  2. Declining to initiate removal proceedings
  3. Agreeing to dismiss removal proceedings
  4. Deciding not to appeal a case
  5. Grant deferred action status or parole. 

What factors for OPLA are in consideration in deciding whether to exercise prosecutorial discretion?

Positive factors: 

A) Length of residence in US

B) Service in the US military

C) Family or community ties in the US

D) Circumstances of arrival in the US and the manner of one’s entry

E) Prior immigration history

F) Current immigration status (generally warranting greater consideration for LPR);

G) Work history in the US

H) Pursuit or completion or education in the US

I) Status as a victim, witness, or plaintiff in civil or criminal proceedings

J) Whether the individual has potential immigration relief available

K) Contributions to the community

L) Compelling humanitarian factors which include poor health, age, pregnancy, status as a child, status as caregiver to seriously ill relative in the US.  

Negative factors:

A) Criminal history – with consideration of extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation, extenuating circumstances involving the

offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity shows a threat to Public Safety.

 B) Participation in persecution or other human rights Violations

 C) Extensiveness and seriousness of prior immigration

violations (e.g., non-compliance with conditions of release, prior

illegal entries, removals by ICE)

D) Fraud or material misrepresentation.

Cancellation of Notices to Appear (NTA)

The memo grants the authority to Government attorneys to not file the document necessary to initiate removal proceedings, the Notice to Appear (NTA).  In cases where an NTA was issued but not filed with the Immigration Court, the Government attorney can work with ICE

Enforcement and Removal Operations (ERO) to cancel the NTA.

Administrative Closure or Continuance

The ability to use administrative closure as a form of PD for ICE is limited to only three

circuits in the US: Third, Fourth and Seventh Circuits.  Fortunately, dismissal of a case without prejudice has replaced administrative closure and the effect of a dismissal is practically the same as, or even better, than administrative closure.  For motions to continue, the 05/27/21 Trasvina Memo states that “OPLA attorneys are authorized to take the general position that ‘good cause’ exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review.”

Authority to Dismiss Proceedings

As to the dismissal of removal proceedings without prejudice, the memo states that “OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal of proceedings consistent with its limited resources and DHS and ICE guidance.” 

Cases meriting dismissal in the absence of serious aggravating factors: 

A) Military service members or immediate relatives thereof

B) Individuals likely to be granted temporary or permanent relief (I-485, CP/601A, TPS, SIJS); C)Compelling humanitarian factors (serious health condition, elderly, pregnant, victim of domestic violence, serious illness of immediate family member)

D) Significant law enforcement or other governmental interest (confidential informant, witness in proceeding, U-Visa)

 E)Long-term lawful permanent residents.


This memo signifies a positive change in the way that the government is approaching immigrants in removal proceedings. If you are in removal proceedings and would like more information on how you can benefit from this new policy memo, please contact us at 775-453-4451. 

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