Full Prosecutorial Discretion Returns Under Biden

May 27, 2021
Under the second term of the Obama administration, prosecutorial discretion in immigration proceedings became widely available.   Criminal immigrants were prioritized for removal, and individuals with insignificant or limited criminal history were granted prosecutorial discretion – generally in the form of administrative closure.
Under the Trump administration, all immigrants were prioritized for removal, and administrative closure was banned by Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) (whereby Jeff Sessions eliminated the court’s ability to administratively close cases).   Therefore, everyone was forced to fight on the merits of the case through a formal application for relief – not always an easy task.

Full Prosecutorial Discretion is Back! 

Well, it is not necessarily “full” prosecutorial discretion, and each attorney working for DHS has guidelines to follow and supervisors to please.  However, it appears that this era of prosecutorial discretion will be as good as, if not better than, what we saw under the second Obama term.  Many immigrants will be spared from removal.  Even clients with criminal history may be granted prosecutorial discretion, so long as they do not pose a risk to national security or public safety.

View the new Biden Prosecutorial Discretion Memorandum:

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities – May 27, 2021

For the official nationwide prosecutorial discretion webpage, click HERE.

For local Denver OPLA information regarding PD requests, download the following guidance:  OPLA Denver Information Sheet – Prosecutorial Discretion Requests
At the Law Office of Michael J. McCarroll, we are knowledgeable in what makes a successful PD request. If you are in removal proceedings in Denver, CO, and you need help to request that your case be dismissed, feel free to schedule a free consultation with our Denver immigration lawyer online.
For the time being, it appears that prosecutorial discretion will take the form of a Joint Motion to Dismiss Without Prejudice since Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) is still valid law and DHS is taking the position that administrative closure is not possible.