Are you an immigrant afraid of deportation? New Memo on Prosecutorial Discretion may HELP!

  • Good News For Immigrants in the United States. New policy under Biden signals a return to pre-Trump days in terms of prosecutorial discretion. Immigration once again has the power to prioritize through assessment of cases. 

    The Trump administration passed three executive orders  that essentially made all undocumented immigrants a priority for deportation, as well as rescinding most of the guidelines that were being used for prosecutorial discretion. That policy meant that everyone was considered at risk for removal, and made it more difficult to negotiate the deportation labyrinth.

    The Biden administration released a memo in April 2022 that provides a strong directive to ICE attorneys to update and expand the exercise of prosecutorial discretion by DHS.  The Doyle Memo streamlines ICE processes for designating enforcement priorities and provides greater discretion to ICE attorneys to exercise various forms of prosecutorial discretion in individual cases.

    The memorandum, titled Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum) will be effective from April 25, 2022. This memo is consistent with the memorandum titled Guidelines for the Enforcement of Civil Immigration Law issued in September 2021, which took effect in November 2021 (Mayorkas Memorandum).

  • What does this all this mean in a nutshell?

    While prosecutorial discretion is not always a tool that can be used to find substantive form of immigration relief, it can be used to avoid deportation and buy time for immigrants while they look for other avenues to get their green card or other protection.

  • Right Now is a very good time to look for these other avenues.

    What is prosecutorial discretion?

    “In the judgement of the immigration officer…”

    Prosecutorial discretion is a long standing concept that describes personal authority that an Immigration official has — to be able to make decisions on types of charges — lodged in an individual immigration case.

  • It essentially allows an ICE attorney the right to his or her own personal opinion on each case, based on authority and experience.Below is a 2 minute clip from a webinar I did for Lawline, that explains the basics of prosecutorial discretion.


    How can Prosecutorial Discretion help or hinder your case?

    The power of prosecutorial discretion is in its ability to quickly change the outcomes or direction of a particular case.

    It was designed to allow individuals through the daunting piles of immigration cases (more than 1.7 million pending court matters) in such a way that – without wasting too much government time and money – quick decisions can be made about which cases pose the most threat to Homeland Security.

    This discretion meant cases that fall into any of the high priority deportation category are taken first, and those that fall into a lower priority category could be essentially dismissed, or moved toward a positive outcome.

    What cases qualify for high priority in deportation?

    In November 2014 the Obama Administration named as high priority cases, among others:

    • Terrorists, national security threats, individuals apprehended at the border attempting to enter unlawfully, gang members, individuals with felony convictions
    • Prioritized unless they qualify for asylum or other relief (or Immigration finds extenuating circumstances)
    • Those who attempted to cross the U.S. border unlawfully
    • Immigrants or border crossers who have committed misdemeanors
    • Those who had already received an order for removal (deportation) from the United States

    In his Executive Order: Enhancing Public Safety in the Interior of the United States President Trump expanded the definition of high priority to include immigrants who:

    1. Have been convicted of any criminal offense
    2. Have been charged with any criminal offense, where such charge has not been resolved
    3. Have committed acts that constitute a chargeable criminal offense
    4. Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency
    5. Have abused any program related to receipt of public benefits
    6. Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States
    7. In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

    Under the Trump rules, in theory, a student who overstays her visa, and is caught jaywalking would be considered a priority, even if they were a model person in every other way.

    Biden has put interim guidelines for removal / deportation that are intended to “focus…limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission.” In other words, less about those who overstay their visa, or minor violations, and more about those people who genuinely post a threat to national security.

    No matter if you are high or low priority, if you suspect that you fit into any of the categories above PLEASE CONTACT AN EXPERIENCED IMMIGRATION LAWYER before you try to proceed on your own in any immigration matter.


Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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