New Memo About Prosecutorial Discretion in Immigration Court

Last updated on June 16, 2021

Recently, the U.S. government shared a new memo that could be helpful for some immigrants in immigration court. It gives instructions to the attorneys at Immigration and Customs Enforcement (ICE) to prioritize certain types of cases. Previously, ICE attorneys fought for deportation in almost every case in immigration court. This memo means they can be more flexible in some cases, which is called “prosecutorial discretion”.

What is “prosecutorial discretion”?

“Prosecutorial discretion” refers to the decisions ICE attorneys make to take action or not take action based on the individual circumstances of a case. These ICE attorneys represent the government in deportation and bond proceedings, like prosecutors. They can use their discretion to decide whether to end deportation proceedings, or to resolve the case in some other way.

What are some of the main points from the memo?

Under the Trump administration, “prosecutorial discretion” was not used consistently or very often. But this new memo encourages ICE attorneys to make case-by-case decisions. Here are some of the main points from the memo:

ICE attorneys are supposed to prioritize cases in the following three categories:
- (1) if the person has participated in terrorism or related activities;
- (2) if the person entered the United States on or after November 1, 2020; or
- (3) if the person has been convicted of certain crimes.
“Prosecutorial discretion” can take place at any stage in a case. For example, ICE attorneys can decide not to start deportation proceedings at all. They can also agree to other requests, like if someone asks for more time before their next hearing.
Sometimes ICE attorneys can decide to end deportation proceedings against someone. For example, they can do that if someone is eligible for another type of immigration status, like a U visa.

This memo can affect asylum seekers in different ways depending on the specific details of their cases. To learn how it could affect your case, it may be helpful to talk to an attorney. Visit our website for information on how to find legal help, including a video on how to search for an attorney.