IN what has been described as “…a dramatic shift in U.S. immigration enforcement policy that will likely spare most undocumented immigrants who have lived in the U.S. for years…,” on September 30, 2021, Alejandro Mayorkas, the Sec. of the Department of Homeland Security, issued new guidelines for the enforcement of civil immigration law, which are to become effective on November 29, 2021.
This memo provides guidance to DHS for the “apprehension and removal of non-citizens.” More importantly, it provides guidance or a framework for DHS exercising prosecutorial discretion, which is basically the government deciding who is subject to arrest, detention, removal or deportation, and who should be left alone, even though they may be technically subject to deportation or removal.
The reason for DHS to exercise prosecutorial discretion is explained in this memo. There are more than 11 million undocumented or otherwise removable noncitizens in the U.S. DHS simply does not have the resources to pursue removal proceedings against every single one of them. In addition, there are simply not enough courtrooms, which are already backlogged. Therefore, DHS believes it needs to exercise discretion or judgment, and determine who to prioritize for immigration enforcement action or deportation.
This new memo even recognizes the contributions being made by so many people who are out of status or undocumented, including those who work on the front lines in the battle against COVID-19, teach our children, do backbreaking work, and just want to be legal, so they can contribute to the U.S.
The memo goes on to state that, “the fact an individual is a removable noncitizen… should not alone be the basis of an enforcement action against them.” In other words, if the only immigration violation a person has is being out of status, that should not warrant them being targeted for removal. Instead, DHS wants to focus its efforts on “those who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
- Threat to national security. This includes noncitizens who are engaged in terrorism, espionage, or terrorist-related activities, or otherwise pose a threat to national security.
- Threat to public safety. This includes those who have committed serious criminal conduct.
- Threat to border security. This includes people who are apprehended at the border or port of entry/airport, while attempting to unlawfully enter the U.S., such as what may be happening at the southern border right now, or they were apprehended in the U.S. after unlawfully entering after November 1, 2020.
The memo also instructs officers that they should not target a person for apprehension or removal because of their race, religion, gender, sexual orientation or gender identity, national origin, or political associations. As the memo states, “we must ensure that enforcement actions are not discriminatory and do not lead to inequitable outcomes.”
The memo also seeks to protect or assure vulnerable noncitizens who face threats of being reported to DHS by employers or landlords, who may seek to exploit them by threatening to turn them over to immigration. As the memo states, “we must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices.”
There have been many previous memos on prosecutorial discretion, and I have written articles, and posted videos on my YouTube channel, “US Immigration TV.” What happened was memos were issued, lawsuits were filed, court injunctions were issued, and new memos came out. But this memo is now going to be the operative memo or guidance on prosecutorial discretion.
Therefore, if you or anyone you know is in deportation or removal proceedings, or may have already been ordered removed, and are not one of the listed “enforcement priorities,” you should consult with an attorney who can evaluate your case and request the government to exercise prosecutorial discretion, which could include perhaps not pursuing removal proceedings against you in the first place, dropping or dismissing removal proceedings, or reopening previous removal order and having the case dismissed, so you can pursue a green card through other ways, such as marriage to a U.S. citizen. But the documentation and evidence have to be properly gathered assembled, packaged, and presented to the government. That’s why, if you could benefit from prosecutorial discretion, you should consult with an attorney for guidance.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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