U.S. Immigration and Customs Enforcement, on May 27, 2021, issued its interim guidance on civil immigration enforcement priorities, giving prosecutors more discretion to decide which immigration cases to pursue. Attorneys of the Office of the Principal Legal Advisor (OPLA) are responsible for initiating removal proceedings against a person based on the factors outlined in the memo.
The memo instructs OPLA attorneys to direct agency resources toward enforcement and removal priority cases and grant leniency to other types of immigration cases. Under the new interim guidance, the Biden Administration will prioritize the removal of noncitizens who pose a risk to national security, border security or public safety.
OPLA attorneys can exercise prosecutorial discretion for other types of cases at any stage of removal proceedings. This means that besides individuals that fall into the three categories above, most everyone else is not a priority for enforcement and may be eligible to request prosecutorial discretion from the government.
The new guidance provides a wide range of aggravating and mitigating factors that OPLA attorneys should consider when evaluating whether to use prosecutorial discretion. Mitigating factors include a person’s community links and contributions, immigration history and status, work history, length of U.S. residence, and military service, among others. Aggravating factors where OPLA attorneys may continue to pursue a person’s removal include criminal history, nature of past immigration violations or participation in human rights violations.
The interim guidance signals a radical departure from the Trump Administration’s approach to immigration in which every case was considered an enforcement priority, and prosecutorial discretion was not exercised. OPLA will update the guidance as necessary in the future following a comprehensive review.