Statutes of Liberty: We Explain the Discretionary Power of Prosecutors and Why It’s a Huge Victory


This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing lawyers at Steelyard LLC, an immigration law firm located in Arlington, Virginia. The legal information given here is of a general nature. If you want legal advice, contact James for an appointment.

Editor’s Note: Stay tuned for Part 2 of “An Asylum Case from Two Perspectives” next time!

In American society, we often hear about the discretionary power to prosecute in criminal matters. Almost every election season, we hear about prosecutors who are more interested in prosecuting defendants who commit serious crimes rather than minor offenses.

However, you may not be aware that prosecutorial discretion also exists in the immigration context when it comes to deportation proceedings. In countries of immigration, the Office of the Senior Legal Counsel (OPLA) of the United States Department of Homeland Security, Immigration, and Customs (ICE) acts as a prosecutor in deportation proceedings. The OLA has technically always had the discretion to dismiss cases or to accept specific types of eviction relief, but in recent years we have seen very little discretion on the part of the offices of the OLA. ‘OPLA.

However, on May 27, 2021, immigration lawyers and non-nationals received a gift from John D. Trasviña, ICE’s senior legal advisor, in the form of a a memorandum allowing various types of discretion in deportation cases. In line with President Biden’s Executive Order on Civilian Immigration Enforcement Policies and Priorities, this memorandum makes the most serious cases a priority for further deportation, while simpler cases are no longer a priority. and may be taken into account for the discretion of the prosecutor.

The memorandum notes certain cases, such as cases involving non-nationals who pose a risk to national security, border security or public safety, as priorities for further enforcement and deportation. For example, non-citizens who have been the subject of serious criminal convictions such as drug trafficking, fraud and murder will not be eligible for the discretionary power of prosecution and, therefore, their deportation cases will continue.

However, prosecutors can now dismiss or temporarily close cases in immigration court if they believe a non-national warrants the exercise of favorable discretion after analyzing various factors. For example, prosecutors will take into account a non-national’s length of residence in the United States, military service, immigration history, and humanitarian factors such as age, health or being the primary caregiver of a sick relative in the United States.

This resurgence of prosecutorial discretion will act as a reprieve for all parties involved. During the last years, the number of eviction cases in immigration courts swelled to about 1.3 million. In our experience, it takes an average of five to eight years to close a deal. Immigration courts were neither staffed nor resourced to deal with cases in a timely manner, and courts additionally suffered from the implementation of a quota system under the Trump administration, which required judges deal with a number of cases each day. In some cases, this created unfair results or only a cursory review of a case due to the time constraints the quota system placed on judges.

While OPLA offices are likely inundated with requests for prosecutorial discretion at the moment, the decision to dismiss or temporarily close a case will place a lighter burden on prosecutors in the future. Like criminal prosecutors or public defenders, OPLA lawyers can handle 50 cases a day in court. Once the number of cases is reduced, OPLA lawyers will have more time to focus on the more serious cases.

Finally, and most important from our perspective, prosecutorial discretion is a huge victory for our clients. Many clients facing deportation proceedings do not have a criminal history and are eligible for a remedy which is easily pursued in front of other immigration agencies, but for being in deportation proceedings. . Taking our clients out of deportation proceedings, and therefore out of the jurisdiction of the immigration court, will allow many clients to apply for their green cards or other remedies with the United States Citizenship and Immigration Services ( USCIS). Cases in USCIS have a much faster turnaround time than cases in immigration court. A person applying for a green card in an immigration court may wait five years to have the final hearing and receive the judge’s decision to grant the green card, which may only take one or two years before the USCIS.

We are already seeing this policy in action in our office. A local OPLA office agreed to reject a client’s case to allow the client to apply for a green card before USCIS. Our client is very deserving, and not only will she receive her green card faster, but she will also go through a much quieter process before USCIS. We look forward to working with our local OPLA offices on other deserving cases.

As always, we would love to hear your thoughts and will do our best to respond to you.


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