POTUS Restores Prosecutorial Discretion in Immigration Cases

In a recently issued memorandum, President Biden restored the prosecutorial discretion of immigration attorneys working for Immigration and Customs Services (ICE). The memo restores the ability of ICE attorneys to prosecute or administratively close cases, and urges them to consider “humanitarian factors” that might impact the case. This memo comes at a time when an unprecedented number of immigration cases now sit before courts across the country.

What is Prosecutorial Discretion?

The term “prosecutorial discretion” refers to the power that ICE attorneys hold to decide whether or not to charge someone with a violation of the law, as well as to decide what charges to pursue. It is common for attorneys working for the government to have independent prosecutorial discretion, which they use to prosecute their cases as best as they can. This includes the authority to decide to administratively close a case, if they believe it is either a poor case or would go against the interests of justice to pursue it.

How Were Things Before?

During the previous presidential administration, ICE attorneys were heavily restricted in terms of their ability to exercise prosecutorial discretion. This meant they effectively had to pursue every case, regardless of extenuating circumstances or any special concerns that might have made a case a priority for deportation. As a result, the immigration courts became absurdly backlogged, with approximately 1.3 million cases waiting to be heard by the 500 or so immigration judges across the United States.

What is the Impact of the New Memo?

By restoring prosecutorial discretion to ICE attorneys, they can choose which cases they want to prioritize, and which ones they want administratively closed. This means that many people whose cases have been sitting on a court docket for months or years may find those cases administratively closed, due to an ICE attorney not wanting to pursue it. On the other hand, serious cases involving violent criminals may be fast-tracked, instead of being held up by the massive backlog.

What Does This Mean For Immigrants?

For most immigrants, this should come as a pleasant surprise. With prosecutorial discretion restored, many people with cases currently before ICE may find themselves getting unexpected mercy from the immigration court. In addition, the backlog of immigration cases as a whole are likely to decrease, as ICE attorneys seek to empty their absurd case loads. This could mean a significant decrease in the amount of time immigrants wait while their cases go through the court system. It could also give them the chance to pursue other forms of relief.

For more than forty years, the Drucker Law Firm has been providing personal and quality legal services to individuals, universities, and corporations throughout the New York City and Tri-State area. We have represented three generations of clients in immigration and nationality matters, as well as personal injury, family law, criminal law, and general litigation matters. If you have a legal issue related to immigration law, please give us a call at (718) 458-1489 to schedule a consultation or visit our contact page.

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