Case Dismissal Though Prosecutorial Discretion

Currently there are over two million cases pending before US Immigration Courts, and over 260,000 cases pending before the Miami Immigration Court alone. Because of this large number of cases and the lack of resources (including immigration judges, judicial staff, and interpreters), immigration court cases can take an indefinite amount of time to resolve and it may take many years for respondents (individuals with cases before immigration court) to have their final hearings on the merits of their case. While this may be a benefit for respondents whose cases are not particularly strong. It is extremely frustrating for those who have strong cases for relief. This situation is also a burden for the Department of Homeland Security who would prefer to hear priority cases heard sooner rather than later. Because of the lack of resources to hear all cases in a timely manner, the Biden Administration has issued Civil Enforcement Priorities in order to reduce the burden on the Immigration Courts and the Department of Homeland Security. These Civil Enforcement Priorities allow the Department of Homeland Security to dismiss cases that do not fall within the Civil Enforcement Priorities on a case-by-case basis under the process called “Prosecutorial Discretion.”

What are the Civil Enforcement Priorities?

The Doyle Memo regarding Civil Enforcement Priorities was issued on April 03, 2022. However, a federal court prevented the Biden Administration from using this guidance until June 23, 2023. The Doyle Memo  illustrates the three primary factors to determine whether a case is a Civil Enforcement Priority: 1) Border Security, 2) Public Safety, and 3) National Security. 

The Doyle Memo states that individuals who entered prior to November 01, 2020 are not a Civil Enforcement priority. However, this is not the only consideration as to whether an individual may be granted prosecutorial discretion. The Department of Homeland Security will also consider a Respondent’s criminal history and whether there is any threat to national security posed by the individual. Because requests for prosecutorial discretion are determined on a case-by-case basis, it is fundamental that a licensed and experienced immigration attorney analyze each case. 

What is the benefit of Prosecutorial Discretion?

In the case of dismissal, the Notice to Appear issued by the Department of Homeland Security is dismissed as are removal proceedings in immigration court. This means that the respondent in the case no longer has to appear in immigration court. Additionally, if the respondent has avenues for relief such as asylum, adjustment of status, family petitions, U-visa applications, etc., the respondent may pursue those cases before the US Citizenship and Immigration Service (USCIS). In the case of asylum, there is a specific procedure for re-filing asylum applications in dismissed cases before USCIS. Refiling an asylum application before USCIS allows the individual to continue renewing his or her work permit as long as the case is pending. 

What are important considerations for individuals who want to pursue Prosecutorial Discretion?

First, it’s important that a dismissal does not grant an individual any kind of status in the United States. Additionally, it may be possible for the Department of Homeland Security to reissue a Notice to Appear in Immigration Court at a later date. If a Notice to Appear is re-issued, then the individual will need to go back to immigration court. For example, if an individual has her asylum case dismissed before immigration court and refiles it before USCIS, it will eventually be examined by an asylum officer. If the asylum officer determines that the case is not approvable, the individual will be issued a new Notice to Appear and sent back to immigration court. However, it is possible that many years pass before that happens and the individual may have different avenues for relief before the court.

Second, it is important to understand that the Civil Enforcement Priorities that allow for Prosecutorial Discretion were implemented by the Biden Administration. At the time of this writing, 2024, it is a Presidential Election year. Should a new President be elected, these Civil Enforcement Priorities are likely to change. For example, President Obama also issued Civil Enforcement Priorities and utilized prosecutorial discretion. However, when President Trump was elected, he rescinded these Civil Enforcement Priorities and determined that all cases were priorities for enforcement. Therefore, it is important not to wait to make a decision should you wish to pursue prosecutorial discretion. 

Third, due to the high numbers of cases, it can take several months for the Department of Homeland Security to make a decision to exercise prosecutorial discretion. Therefore, the sooner you can file a request for prosecutorial discretion.

What should you do if you are considering requesting Prosecutorial Discretion?

Talk to a licensed and experienced immigration attorney. Individuals who are not licensed attorneys are not permitted by law to give legal advice. In the United States, Public Notaries are only allowed to verify an individual’s identity and signature. They have no training in the law, and it is illegal for them to provide any legal advice.