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New Government Guidance in 2022 on Prosecutorial Discretion

By April 28, 2022Immigration
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On April 4, 2022, the Department of Homeland Security, provided new guidance which will be effective on April 25, 2022, streamlining the process for designating enforcement priorities and provides greater discretion to government attorneys to exercise Prosecutorial Discretion in individual cases. The guidance attempts to clarify prior guidance communicated last year addressing prosecutorial discretion. You can review our article commenting on prosecutorial discretion here.

The new guidance indicates that any case designated as a nonpriority will be eligible for prosecutorial discretion, including dismissal without prejudice or administrative closure. However, keep in mind that the government’s preferred form of discretion will be dismissal of removal proceedings. You can review our article on removal proceedings here.

It also important to note that although any case designated as a priority will generally not be considered for discretion, a noncitizen may seek still reconsideration of the priority designation, particularly if there are emergent developments in the case. Government attorneys will be actively reviewing cases to determine a noncitizen’s eligibility for prosecutorial discretion during their normal preparation and handling of cases.

Furthermore, although noncitizens do not have to submit a request for Prosecutorial Discretion to be considered for discretion, government attorneys will consider affirmative requests, particularly for cases not on the active docket or with imminent hearings.  Noncitizens are encouraged to affirmatively request PD at the earliest possible stage in the removal proceedings. The new guidance also expands the delegation of decision-making authority beyond the Chief Counsel to streamline the handling of prosecutorial discretion requests.

Priority v. Nonpriority cases

In cases where there is no criminal history and it is clear that the case falls under a nonpriority designation, and the government has not communicated an offer of prosecutorial discretion a noncitizen simply has to provide a statement that the noncitizen does not believe to be an immigration enforcement priority; and Confirmation that the noncitizen does not object to the case being dismissed.

Priority designation is not clear

Where the priority designation is unclear, the noncitizen will be expected to provide all supporting evidence addressing any positive or negative factors in the case; an explanation of why this information is relevant to whether the case is a priority; and confirmation that the noncitizen has no objection to the case being dismissed if the case is found not to be an immigration enforcement priority.

In these cases where the priority designation is not clear, the noncitizen should be prepared to provide evidence of mitigating factors such as:

  • The noncitizen’s current age, particularly if a minor or elderly;
  • Age at the time the noncitizen committed any criminal offenses;
  • the length of time the noncitizen has been in the United States;
  • whether a mental condition contributed to prior criminal conduct;
  • whether the noncitizen is receiving medical treatment in the United States and the nature of such treatment;
  • whether the noncitizen is the victim of crime or a witness, victim, or party in legal proceedings;
  • the impact of removal on the noncitizen’s family in the United States, such as loss of a provider or caregiver;
  • whether the noncitizen is eligible for humanitarian protection or other immigration relief;
  • The noncitizen or relatives’ service in the military or other public service;
  • the length of time since the last offense and evidence of rehabilitation;
  • whether the conviction was vacated or expunged, or the underlying criminal activity decriminalized;
  • whether the noncitizen is pregnant, postpartum, or nursing;
  • whether the noncitizen is a lawful permanent resident, and for how long;
  • whether circumstances of an arrest indicate improper discrimination or retaliation by law enforcement; and/or whether the noncitizen is cooperating with federal, state, local, or tribal law enforcement.

Certainly, the first and best way to determine whether a case maybe a priority or nonpriority case and whether prosecutorial discretion is in the noncitizen’s best interest is to consult with an experienced removal and deportation attorney.

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