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Did a court order end prosecutorial discretion in removal proceedings?

A court building

The short answer is no. What recently transpired regarding prosecutorial discretion is that a federal district court in Texas issued an order effective as of June 25, 2022, ending the implementation of the guidance under President Biden known as the Department of Homeland Security’s Civil Immigration Enforcement Priorities that was formally in effect since April of 2022.

You can read our discussion of the Biden administration guidance attempting to clarify priority cases to prosecute removal from the United States and cases that were not a priority to prosecute removal here.

You can read our discussion addressing what happens when a noncitizen is facing removal proceedings here.

The 2022 guidance served to provide a clear outline of factors for an immigration official to consider including factors such as whether a noncitizen is to be considered a priority for removal from the United States based making consideration of discretion much harder to obtain.

However, the end of this guidance did not necessarily mean that prosecutorial discretion was over or that it was necessarily easier to obtain. The June 25th order essentially did away with more formal requirements and factors to consider. The positive is that a government official is free to consider almost anything in his evaluation of discretion. The negative is that now there is no uniform guidance on what information the government favors unlike before, where guidance provided a roadmap for officials to follow in considering discretion.

In truth, not much has really changed. Government officials will still consider most of the negative and positive factors in a noncitizen’s life to evaluate if discretion is warranted similarly as before. This type of evaluation did not change only that there is no formal list indicating what these factors are. What is different, is that the government, can no longer follow the specific factors outlined in the 2022 guidance including factors determining whether a noncitizen is a priority for removal and strict factors to consider whether a noncitizen warrants discretion. Now the immigration official will look at all factors, positive and negative to weigh whether factors weigh in the favor of discretion or not.

Regardless, it is still generally recommended that in a request for discretion, past factors such as length of time in the United States, consideration of immediate family livening in the United States, work history and criminal history among other factors should be addressed by a noncitizen to be considered by the reviewing official as well as the seriousness of a past criminal offense, indications of rehabilitation and the length of time since the offense occurred.

Now more than before, since there is no formal guidance or process to request prosecutorial discretion, the experience of an immigration attorney is important based on the fact that the attorney’s past experience in requesting discretion and knowing what has worked in the past, before the 2022 guidance will allow the attorney to understand what the government attorneys that work in his geographical area will prefer and what issues need to be addressed when attempting to seek discretion.

Finally, the forms of prosecutorial discretion will still remain the same where government attorneys and officials will be free to exercise discretion in the form of agreeing to administratively close a case, terminate a case, or agree that a noncitizen qualifies for relief to stop removal or agree to stipulate to certain issues or facts that may be in favor a granting a form of relief to the noncitizen.

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