Current Trends on Execution of President Biden’s Prosecutorial Discretion Policy

Since last summer’s announcement of the government’s new prosecutorial discretion policy, we have definitely seen implementation of the new policy, although implementation has been slow moving with some disturbing as well as some promising trends to report. You can read our detailed discussion of President Biden’s Prosecutorial Discretion Policy here.

Many countless requests of the different versions of prosecutorial requests have been submitted since the summer nationwide, but decisions coming from those requests are slow moving coming in at a trickle, with requests now seeing months after being made still pending for a decision by government attorneys.

We were hoping to see prosecutorial discretion expand to government attorneys stipulating and agreeing that certain noncitizens would be eligible and merit a grant of relief from removal, but we are still seeing in cases where it appears that a noncitizen qualifies and merits an approval, that government attorneys are still seeking to oppose approval in these qualified cases.

When the government announced the criteria that the government attorneys would consider in agreeing to discretion, it was hoped that there would be a uniform procedure to make these requests. Unfortunately, we have seen different jurisdictions requiring different procedures in making such requests ranging from procedures requiring short emails with little opportunity for argument, to procedures requiring complete documented presentations with arguments advocating for discretion. In most cases simpler is better, but since many cases, require detailed explanation and argument, especially in cases where prior criminal history and violations are factors, such opportunity for advocacy is essential for a request to be properly considered.

In some jurisdictions around the country, it is reported that the only discretion being offered by the government is in the form of termination of cases instead of discretion in the form of administrative closure. The key difference between termination of a removal case and administrative closure is that termination is the outright dismissal of a case while closure entails suspending proceedings in a case with the potential of the case being reopened.

Somewhat surprisingly, many noncitizens without status, actually prefer having their cases closed instead of terminated because although closure has the potential of the case being reopened in the future for any reason, many noncitizens may qualify for employment authorization, but can only continue to do so, if their case is closed not terminated. It has therefore been surprising that some government offices have been refusing to agree to administrative closure instead offering termination knowing that closure allows noncitizens without status to continue with their goal to stabilize their lives in the United States. As a result, many noncitizens have opted to continue fighting on with their case risking removal.

Many cases have noncitizens in removal proceedings where either their eligibility for a relief from removal is not clear or even if eligibility is clear, it is not clear whether the noncitizen deserves a grant of relief. In these cases, the government has acted inconsistently making it hard  to fully understand the key circumstances considered to agree to closure or termination of a case.

Most jurisdictions although delayed in making a decision, this delay demonstrated that the government is seriously considering requests for discretion. Many jurisdictions will even concede to continue court hearings for indefinite or long periods of time to allow for proper consideration of prosecutorial discretion requests.

Where a noncitizen presents a strong case for relief from removal, government attorneys although slow, appear to be agreeing to reopen, vacating removal orders in these cases to allow for noncitizens to apply for relief from removal. These include cases where noncitizens were cut off from proving 10 years of physical presence to be eligible for cancellation of removal and now are eligible due to a defect in the opening document to commence proceedings. You can view our discussion on motions to reopen based on new eligibility for cancellation of removal here.

Cases that were denied at the Board of Immigration of Appeals, but now qualify for new relief have also received discretion in the form of support or non-opposition to reopen and vacate the removal order to allow application for the new form of relief.

We have also seen movement at higher appellate levels like appeals before the U.S. Courts of Appeal where government attorneys have agreed to remand to lower courts recommending administrative closure.

In cases where a noncitizen will be granted an immigration benefit from the administrative side of immigration such as the United States Citizenship and Immigration Services, but approval for the benefit may take months or years, the government has consistently agreed to administrative closure or termination in these cases.