Prosecutorial Discretion

Prosecutorial Discretion – closing your immigration case?

by Jose Enrique Perez

Yes, the Biden Administration did it again. Now, they have just announced priorities of deportation and prosecutorial discretion.

On May 27, 2021, the Principal Legal Advisor John D. Trasviña issued a Memorandum called Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities. On the same day ICE Acting General Counsel Joseph B. Maher issued a policy titled: Implementing Civil Immigration Enforcement Policies and Priorities. These two documents by the Biden Administration were the result of the announcement made on February 18, 2021 by ICE Acting Director Tae D. Johnson issued the Interim Guidance: Civil Immigration Enforcement and Removal Priorities.

But what all these documents mean? Basically, it means that the government priorities for removal are: 1) terrorist or threats to national security; 2) recent entrants; and 3) immigrants with criminal records. So, if you are not in these removal priorities, we may be able to close your case, we may be able to freeze your case or stop your deportation.

The Department of Homeland Security announced that it will focus on the highest immigration enforcement priorities, namely, national security, public safety, border security and the integrity of our immigration system. These announcements are seen as major changes to the deportation process. They are not, however, changes to the law or comprehensive immigration reform. In point of fact, they do not reform the law at all. These procedural changes may be a step in the right direction though.

This announcement is DHS’s attempt to unclog the deportation case log by removing “low-priority” cases in order to focus on individuals who pose serious dangers to our communities and our country. “High-priority” individuals include, but are not limited to, those who pose a serious threat to national security, are serious felons and repeat offenders, are known gang members, or have a record of repeated immigration violations. “Low-priority” individuals include, but are not limited to, veterans; long-time, lawful residents; DREAMers, migrant workers, TPS holders and others brought to the US as children; pregnant women; victims of domestic abuse and other serious crimes; and spouses, including LGBT spouses.

All 1,300,000 cases currently in deportation proceedings should be reviewed by DHS officials upon request of the attorneys or the parties. Immigration judges and ICE trial attorneys will also be reviewing their cases on a daily and weekly basis to make sure that any case that goes forward is consistent with DHS enforcement priorities.

Individuals in deportation proceedings who are deemed “low-priority” should work with DHS to determine if his/her case should be administratively closed. Those whose cases are closed can apply for a work permit program. Decisions about work permits will be made on a case-by-case basis. Undocumented immigrants not in deportation proceedings cannot seek work permits. Individuals should not attempt to be placed in deportation proceedings in order to apply for a work permit. If implemented properly, these individuals will not be placed into deportation proceedings in the future even if they are caught by immigration so long as this policy is in place.

Please keep in mind that the announcement does not change programs such as 287g and Secure Communities. This is not an amnesty. This is a procedural change in the implementation of DHS’s enforcement policies to target only those who pose serious threats to the US and those with long criminal records.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with this program or any new immigration policies. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at The Law Office of Jose Perez has now moved and is located at 659 West Onondaga Street, Upper Level, Syracuse, New York 13204. Now with offices in Buffalo and Rochester!!! Please look for my next article in the September edition and stay safe, get vaccinated and stay away from the Coronavirus. In addition to our current practice of Personal Injuries, Work Accidents, Social Security and Immigration, we now also practice Criminal, Traffic, Family, DWI and Divorce.

Photos by nappy and Sora Shimazaki from Pexels

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