Biden Memo Allows ICE Attorneys Prosecutorial Discretion to Drop Immigration Cases


If you follow along with our immigration updates, you’re probably just as invested in the much-anticipated immigration policy change we’ve been expecting from the Biden Administration. Well, it’s here, and it could mean big things for your immigration proceedings. So let’s take a look.

Prosecutorial Discretion – What it Is and How it Can Help You

Prosecutorial discretion is leeway, flexibility, the room to decide how an immigration case is prosecuted, if at all. So, this guidance from chief ICE attorney, John Trasviña, appointed by President Biden, denotes an enormous change in how ICE pursues deportation orders. The prosecutorial discretion outlined in the May 27 memo emphasizes the discretion prosecutors have in court, which could lead to more immigrants having the ability to have their case postponed to a more favorable time or even dismiss their case entirely.

 Who is Eligible?

While the memo’s language allows for interpretation and discretion on handling cases by ICE attorneys, it is quite clear who is NOT able to benefit from this consideration, and there are three classifications of ineligibility.

This might sound disheartening, but it’s not to dash your hopes, and you’re likely not part of the groups who are excluded from this discretion. Let’s take a look.

First, anyone facing immigration proceedings classified as a national risk will not benefit from this new immigration guideline. What’s a national risk, you ask—think terrorists, spies, or anyone at risk of damaging the U.S. If you’ve been here, working hard, and staying out of trouble, you shouldn’t have to worry about this one. Most folks don’t.

Next, if you’ve been convicted of an aggravated felony, you aren’t covered by this new guideline. Notice how I said convicted. That’s important. So what is classified as an aggravated felony? There is quite a list for those but think of violent crimes, crimes involving children, drug trafficking, and burglary convictions with a sentence over a year. If you have some traffic violations or small criminal charges, you can still be eligible for the benefits of this policy change.

Third, and this is the disappointing one, this new guideline does not cover undocumented people who came to the U.S. after November 1, 2020. Only a small percentage of undocumented people arrived after November 1, 2020, so hopefully, that stipulation will not affect your case.

Strong Defense

If you are not excluded from this new guideline for any of the reasons I mentioned above, it is imperative that you speak with your immigration attorney immediately to cover any line of defense against deportation. This guideline offers allowanced for “compelling humanitarian factors,” such as whether or not someone is a caregiver, victim of a crime, or seeking asylum.

If your defense in those circumstances isn’t the strongest, you can certainly carry out your immigration proceedings and cross your fingers that the judge rules in your favor; however, this prosecutorial discretion allows your immigration attorney to make an argument as to why you may be deserving of some extra consideration, which could mean you’re staying in the U.S.

This ruling, which came down from the very top, allows immigration courts to reopen at a limited capacity and start their caseload rotation. We expect that to happen this fall, which will be here before you know it. If you or someone you know is facing immigration proceedings and would like more information about prosecutorial discretion, please reach out to one of our experienced immigration attorneys today.

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