Example: tourism industry

I. Introduction Using the OPLA Prosecutorial Discretion Memo …

Practice Alert:Advocating for Clients in Removal ProceedingsUsing the OPLA Prosecutorial DiscretionMemo1 June 21, May 27, 2021,2 ICE Principal legal Advisor JohnTrasvi a issued a long awaiteddepartment-wide memorandum ( Trasvi a memo )3providinginterim guidance to OPLA4attorneys about how and when to exercise prosecutorialdiscretion ( PD ) under DHS interimenforcement , on June 11,2021, Acting EOIR Director Jean King issueda memorandum ( King memo ) to all Immigration Courtand Board of Immigration Appeals(BIA) personnel discussing EOIR policies related toDHS interim enforcement alert builds upon ourprevious practice advisory, Advocating for Clients under theBiden Administration s Interim Enforcement Priorities, 7and provides key information,takeaways, and practice tips for advocating with ,Practice Advisory for ImmigrationAdvocates: The Biden Administration s InterimEnforcement Priorities, (March 23, 2021), King,Provides EOIR policies regarding the effectof Department of Homeland Security enforcement prioritiesand initiatives, June 11, 2011, available Trasvi a memo operationalizes the interim enforcementpriorities set forth in the January 20, 2021memorandum from Acting DHS Secretary David Pekoske,Review of and Interim Revision to Civil ImmigrationEnforcement and Removal Policies and Priorities( Pekoskememo ), and follows the February 18, 2021memorandum issued by Acting ICE Director Tae Johnson,Interim Guidance: Civil Immigration Enforcement

Practice Alert: Advocating for Clients in Removal Proceedings Using the OPLA Prosecutorial Discretion Memo 1 June 21, 2021 I. Introduction On May 27, 2021, 2 ICE Principal Legal Advisor John Trasviña issued a long awaited department-wide memorandum (“Trasviña memo”) 3 providing interim guidance to OPLA 4 attorneys about how and when to exercise prosecutorial …

Tags:

  Practices, Legal

Information

Domain:

Source:

Link to this page:

Please notify us if you found a problem with this document:

Other abuse

Transcription of I. Introduction Using the OPLA Prosecutorial Discretion Memo …

1 Practice Alert:Advocating for Clients in Removal ProceedingsUsing the OPLA Prosecutorial DiscretionMemo1 June 21, May 27, 2021,2 ICE Principal legal Advisor JohnTrasvi a issued a long awaiteddepartment-wide memorandum ( Trasvi a memo )3providinginterim guidance to OPLA4attorneys about how and when to exercise prosecutorialdiscretion ( PD ) under DHS interimenforcement , on June 11,2021, Acting EOIR Director Jean King issueda memorandum ( King memo ) to all Immigration Courtand Board of Immigration Appeals(BIA) personnel discussing EOIR policies related toDHS interim enforcement alert builds upon ourprevious practice advisory, Advocating for Clients under theBiden Administration s Interim Enforcement Priorities, 7and provides key information,takeaways, and practice tips for advocating with ,Practice Advisory for ImmigrationAdvocates: The Biden Administration s InterimEnforcement Priorities, (March 23, 2021), King,Provides EOIR policies regarding the effectof Department of Homeland Security enforcement prioritiesand initiatives, June 11, 2011, available Trasvi a memo operationalizes the interim enforcementpriorities set forth in the January 20, 2021memorandum from Acting DHS Secretary David Pekoske,Review of and Interim Revision to Civil ImmigrationEnforcement and Removal Policies and Priorities( Pekoskememo ), and follows the February 18, 2021memorandum issued by Acting ICE Director Tae Johnson,Interim Guidance: Civil Immigration Enforcement andRemoval Priorities( Johnson Memo ).

2 The Trasvi amemo applies only to OPLA, while the priorities setforth inthe Pekoske memo apply to all DHS components, includingUSCIS and CBP. Note that on the same day as theTrasvi a memo, May 27, 2021, Acting DHS General CounselJoseph B. Maher issued a memo titledImplementingInterim Civil Immigration Enforcement Policies andPriorities( Maher memo ) that is referenced throughouttheTrasvi a memo. The Maher memo has yet to be Office of the Principal legal Advisor (OPLA)was formerly known as the Office of Chief Counsel(OCC).3 SeeJohn D. Trasvi a,Interim Guidance to OPLA AttorneysRegarding Civil Immigration Enforcement andRemoval Policies and Priorities, May 27, 2021, the memo is dated May 27, 2021, it was publiclyreleased on June 4, of the National Immigration Project ofthe National Lawyers Guild (NIPNLG) and ImmigrantLegalResource Center (ILRC), 2021. This practice advisoryis released under a Creative Commons License (CC BY ). The advisory isintended for authorized legal counsel and is nota substitute forindependent legal advice provided by legal counselfamiliar with a client s case.

3 Counsel should independentlyconfirm whether the law has changed since the dateof this publication. The authors of this practiceadvisory areCristina Velez, NIPNLG, and Anita Gupta, 2021 The guidance in the Trasvi a memo covers various decisions made by OPLA attorneys,including whether to file or cancel a Notice to Appear(NTA); initiate or join motions forcontinuances, dismissals, motions to remand or reopen,and motions for relief; agree to bondand/or release; and pursue appeal. The memo describesthe purpose of PD as being to preservelimited government resources, achieve just and fairoutcomes in individual cases, and to advance[DHS] mission of enforcement of immigration lawsin a smart and sensible way that promotespublic confidence. It encourages the use of PD atall stages of the enforcement process andatthe earliest moment practicable. This guidance willlikely remain in effect until DHSS ecretary Alejandro Mayorkas issues new DHS that the OPLA interim guidance and King memodo not constitute changes inimmigration law.

4 OPLA continues to have the discretionto pursue the detention and removal ofindividuals who do not fall within the prioritiesoutlined. While advocates should not assume thatclients will benefit from the interim enforcementpriorities and an exercise of PD, the memopresents new opportunities for advocacy for immigrantsfacing removal of ICE Interim Enforcement PrioritiesThe Trasvi a memo builds on the ICE enforcement prioritiesannounced in the Johnsonmemo and further operationalizes those articulated in the Pekoske memo andExecutive Order13993issued by President Joseph Biden on January20, 2021. The King memo establishespractices and expectations regarding the use of PDin removal proceedings by encouraging IJsand the BIA to affirmatively confer with practitionersand OPLA counsel at the initiation ofEOIR proceedings or appeals before the Trasvi a memo s guidance for OPLA attorneys relieson the same three categories ofenforcement priorities articulated in the Johnsonmemo, which are discussed in further detail inour previouspractice advisory:1.

5 National Security : Individuals who have engagedin or are suspected ofterrorism or espionage, or whose apprehension, arrestand/or custody is otherwisenecessary to protect the national security of theUnited Border Security : Individuals apprehended at theborder or ports of entry on orafter November l, 2020 while attempting to enter unlawfully,or who were notphysically present in the United States before November1, Trasvi a memo instructs that the terms of terrorism and espionage should be applied consistently withsuch definitions in immigration laws, and reiteratesthat general criminal activity is explicitly excludedfromconsideration in a national security threat 20213. Public Safety : Individuals determined to pose a threat to public safetyANDwho convicted of an "aggravated felony," in a criminal street gang or have a determining whether a noncitizen poses a threatto public safety, considerationsinclude the extensiveness, seriousness, and recencyof the criminal activity as well as mitigatingfactors, such as personaland family circumstances,health and medical factors, ties to thecommunity, evidence ofrehabilitation, and whetherpotential immigration relief is attorneys may still take enforcement action against non-priorities in consultationwith their Chief Counsel, who may determine that theaction is an appropriate use of Prosecutorial DiscretionOPLA attorneys will respond to requests for PD fromboth represented respondents andpro serespondents.

6 The Trasvi a memo also instructsOPLA attorneys to affirmatively evaluateeach case for PD, even if the respondent does notrequest Discretion may be exercised at any stageof the process, OPLA attorneys areencouraged to exercise PD at the earliest point if OPLA does not agree that aparticular case merits PD at one stage, reconsiderationmay be warranted if additionalinformation comes to light or circumstances change,so practitioners should continuouslyevaluate the appropriateness of PD throughout for ConsiderationThe Trasvi a memo articulates a non-exhaustive listof mitigating and aggravating factorsfor OPLA attorneys to consider in the totality ofthe circumstances when making PD include:10 Noncitizens fall under this category if (1) theyhave been convicted of an offense for which an elementwas activeparticipation in a criminal street gang as definedin 18 521(a); or (2) they are 16 years ofage or older andhave intentionally participated in an organized criminalgang or transnational criminal organization to furthertheillegal activity of the gang or transnational criminalorganization.

7 In making this determination, theJohnson memorequires ICE agents to base their conclusion on reliableevidence and consult a Field Office Director (FOD)orSpecial Agent in Charge (SAC). The Trasvi a memo containsno further guidance as to how gang affiliations shouldbe established. Practitioners should be prepared tocontest gang allegations in removal felony is defined by INA 101(a)(43).3 June 2021 Mitigating Factors Length of time in the United States Military service Family and community ties in theUnited States How and why the person entered theUnited States Current immigration status (with greater consideration for LawfulPermanent Residents) Work history in the United States Education in the United States Being a witness, victim, or plaintiff ina civil or criminal case Eligibility for some kind ofimmigration relief Contributions to the community Humanitarian factors, including: Poor health Age Pregnancy Being a child Being a caregiver for aseriously ill relative in theUnited StatesAggravating Factors Criminal convictions BUTOPLA should also consider.

8 Extensiveness, seriousness, andrecency of such criminal history Rehabilitation and extenuatingcircumstances involving theoffense Length of sentence imposed andserved Age of person when offensewas committed Length of time since theoffense/conviction occurred Subsequent criminal activitythat indicates a threat to publicsafety Participation in persecution or otherhuman rights violations Previous immigration violations, such as: Failure to comply with terms ofrelease on bond Prior illegal entries Prior deportations Fraud or material to Exercise PD: Stages of a Removal CaseOPLA attorneys are authorized to exercise PD at variousstages in a removal case,including to determine whether to file or cancel aNotice to Appear (NTA), whether to initiate orjoin motions for administrative closure, continuances,dismissals, motions to remand or reopen,and grants of relief, positions on bond, and decisionsabout whether to pursue appeal. Note thateach Chief Counsel is instructed to issue furtherguidance for their attorneys with more specificson exercising PD in many stages of a case, in a mannerconsistent with the Trasvi a , the King memo instructs ImmigrationJudges (IJs) to affirmatively inquire whether the case remains a removal priority for ICEand whether ICE intends to exercise someform of Prosecutorial and to takeinto account the respondent s position on the4 June 2021matter before taking further action.

9 For additional information and advocacy strategies forrequesting PD before OPLA, please see our previouspractice NTAsOPLA attorneys should independently assess whetherthe initiation of removalproceedings is appropriate regardless of which DHScomponent (ICE, CBP, or USCIS) issues the NTA has been issued but not yet filed,OPLA should consider whethercancellation is appropriate, and if so, work withthe ICE Enforcement and Removal Office(ERO) to cancel the NTA and inform the noncitizenof the cancellation. Thus, if proceedingshave not yet commenced, practitioners should be preparedto advocate with OPLA to cancel theNTA as an exercise of PD. For NTA referrals from USCIS where the noncitizen wishes to beplaced in proceedings to pursue relief (such as non-LPRcancellation of removal), OPLA isadvised to litigate the case to completion unlessthe respondent requests PDprior toa Administrative Closure and ContinuancesOPLA attorneys are encouraged to consent to administrativeclosure of proceedings incircuits where it is permissible12and/or continuanceswhere warranted.

10 In all circuits, includingthose that followMatter of Castro-Tum,27 I. & 271 ( 2018), continuances soughtfor non-priority respondents while the department-widecomprehensive review takes place aredeemed to be categorically for good cause. Moreover,in the absence of serious aggravatingfactors, non-priority cases should generally warrantnon-opposition to a respondent s request forcontinuance. OPLA attorneys may also agree to continuancesin cases that fall within theenforcement priorities. If an OPLA attorney wishesto oppose a continuance for a non-priorityrespondent, they must confer with their Dismissal of ProceedingsThe Trasvi a memo suggests that additional guidanceis forthcoming regarding dismissalof that dismissal of proceedingsis akin to termination, though they carry12 Note that administrative closure is available incircuits that have rejectedCastro Tum, such as theThird, Fourth,and Seventh Sanchez v. Att'y , 997 113 (3d Cir. 2021);Meza Moralesv. Barr,973 656 (7th Cir.)


Related search queries