Almost immediately with the ascension of the Obama administration, the number of individuals removed from this country skyrocketed. By the time he completes his term next year, he will have overseen the removal of over two million people - the most, by far, of any president. For those practitioners who take on removal cases, this led to a significant increase in the cases that were walking into your door, at least during the first term of the Obama administration. The number of removals peaked at roughly 400,000 per year with the number falling to approximately 316,000 in 2014. For years, the Immigration Judges ("IJs") naturally also saw their dockets expand exponentially. However, while the number of removals has leveled off, the number of removals that occur due to the order of an immigration judge has actually been in decline for years: from over 200,000 IJ removal orders issued in 2007 to just over 100,000 in 2012. How can that be?
There are several different reasons for the decline, but one is surely the number of initiatives by DHS to use their discretion in choosing against whom they're going to exercise their enforcement authority and what type of action they're going to take against the individual. Prosecutorial discretion has always existed and yet it could be argued that under the Obama administration there has been more of an attempt to encourage DHS to exercise this authority and an attempt to provide specific guidance to DHS officials on how it ought to be used. One need look no further than the series of "Morton Memos" that was issued beginning in 2010. In 2012, the Deferred Action for Childhood Arrivals program ("DACA") institutionalized this discretion and likely reached its high tide in 2014 when the President attempted to expand the umbrella of DACA under the Deferred Action for the Parents of Americans and permanent residents ("DAPA") program. Such memos and programs allow DHS officials (for example, the Office of the Chief Counsel) to choose not to pursue a case in removal proceedings thereby relieving the IJ from having to issue a removal order. Presto! The IJ still has an expanded docket but ultimately issues fewer removal orders. But is it this simple and do these prosecutorial initiatives play into the removal practitioner's hand? Yes. And No.
YES - PROSECUTORIAL DISCRETION CAN BE A USEFUL TOOL
As a tool for Administrative Closure ("AC")
There is a basic reason that most individuals that are put into removal proceedings are, in the end, required to leave the US either by the issuance of a removal order or a voluntary departure order: most of the individuals do not qualify for relief. Whether it is because of the nature of their criminal background, because they haven't been in the country long enough, because they don't have qualifying family members, etc., there may be nothing that the practitioner can assert to even get the client into the relief ball game. Prosecutorial discretion may be the only life line that your client can cling to.
The American Immigration Council recently published an excellent Practice Advisory regarding how best to advocate for your client in seeking discretion such as AC. Seeking AC requires filing either a written or oral motion with the court. Such a motion is not specifically identified in the OCIJ Practice Manual and thus falls under §5.10(v) Other Types of Motions. In a written form, so long as the motion is properly filed, clearly captioned and complies with the general motion requirements, the court will entertain the motion. This type of motion requires the consent of DHS. Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). As a practical matter, this is the type of motion that is best prepared and submitted as soon as possible to the Office of Chief Counsel ("OCC"). It is difficult to get the OCC to agree to your motion if you send it over to their office a day or two before your master hearing or bring it up on the day of hearing. Even if you have submitted the motion to the OCC weeks in advance or have even spoken to one of the trial attorneys about the motion, a good practice is to e-mail the trial attorney assigned to your hearing a day or two before the hearing and remind them that you are still seeking their agreement. Trial attorneys do not like to be blindsided any more than anyone else and your "heads-up" can go a long away to securing their cooperation.
If granted, the case is "temporarily" taken off of the court's docket. The temporary aspect though is a misnomer. In most instances, the court's physical file is placed on a shelf where it will collect dust until either party seeks to have the case placed back on the docket through a Motion to Recalendar (which is almost never). The IJs understand that for many, if not most cases of an agreed administrative closure, the file will land in a judicial black hole and will never truly be resolved. This can lead to a negative reaction from some IJs and it is not unheard of for the IJ to make an attempt (sometimes aggressively) to persuade the practitioner to forgo having the case administrative closed. Don't fall for it! Such a motion is not only useful, it may be the only way to meet your ethical obligation to zealously advocate for your client. This is especially true where the OCC has agreed to cooperate but only just. Often, there is little benefit or advantage to the OCC agreeing to the motion and hence when they see the IJ pushing back, they make no effort to assert that the motion be granted. You may find yourself on an island arguing that the motion should be granted, but it is mistake to surrender to the IJs pressure. If necessary, make the IJ deny your motion so that you can reserve appeal. From my experience, the BIA has taken a consistently dim view of IJs that fail to grant an agreed motion.
It could be argued that administrative closure for a respondent that has been granted DACA is the proper course of action. Even a cursory comparison of the benefits of DACA and those provided a grant of Temporary Protected Status ("TPS") show they are almost identical. The BIA has held that while a person that has been granted TPS can still be placed into removal proceedings, a grant of administrative closure "is consistent with the nature of TPS." Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). Due to the similarities between TPS and DACA, there is similar strong argument for the IJ to grant AC and not issue a removal order.
Seeking a continuance
Requesting prosecutorial discretion or seeking time to have a DACA application adjudicated can serve as a basis to seek a continuance. In other words, making such a request can serve as the "good cause" required by the regulations. The regulations provide the IJs with broad discretion on whether to grant a continuance. 8 CFR §1003.29. In several cases, the BIA has provided guidance on how IJs should entertain a motion for continuance. See, e.g., Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)(listing several different factors to consider in evaluating the propriety of a continuance); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009)(considering continuances in the context of a pending employment-based application); Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012)(considering continuances in the context of a pending U Visa application).
The practice manual states that this type of motion should be in writing since it specifically discourages oral motions. OCIJ Practice Manual, §5.10(a). However, from my experience, where the practitioner presents evidence that a request for prosecutorial discretion is pending with the OCC, oral motions for a continuance are routinely entertained by the IJ. Just as it is a good practice to make your request for prosecutorial discretion as far in advance as possible, it is equally a good practice to reach out to the trial attorney assigned to your hearing (either a day or two before the hearing or at least before the hearing actually gets started on the day of the hearing) and let them know about the pending request and that you would be seeking a continuance. This is particularly true if your request rests with a different attorney at the OCC - your trial attorney may have no knowledge that you have made such a request.
Just as IJs sometimes put pressure on practitioners to give up the Motion for AC, IJs often try to box practitioners into a time limit for how long the continuance should be. This scenario usually starts with the IJ asking the practitioner, "How much time do you want?" or "How much more time is needed?" Don't fall for it! In the case of a basic request for prosecutorial discretion, hopefully you will have already gained an understanding how long it takes your local OCC to respond to such a request and would then be able to respond accordingly. If you lack this knowledge, you leave yourself at the mercy of the trial attorney who may not have "any skin in the game" and thus is unconcerned whether or how long it takes for the OCC to give you an answer. In this scenario you may be forced to accept a timeline not of your making. The same can happen if the IJ asks how long you need to have the DACA application adjudicated. IJs routinely low ball the time allowed if they grant the continuance. They have no idea how long DACA applications take to process. One response is to assert a realistic amount of time that is needed to complete the process. Beware though, once you set the timeline, the judge may hold it against you when you return to court at the next hearing and the adjudication process has not been complete. Another response is to simply state that you do not have a specific timetable since the adjudications vary so wildly. When the IJ then seeks an opinion from the trial attorney and they throw out some lowball time period, you can at least raise your objection and immediately provide a much higher range thereby creating a quasi-negotiation to reach an agreed amount between the parties. Keep in mind though, if the IJ continues to low ball the time allotted, make it clear that you will take the continuance for now, but that you are not agreeing to forgo seeking another continuance at a future hearing.
Institutional v. individual
You can probably guess by now, that like so many other aspects of our profession, many of the things that you want to accomplish for your client can often come down to the personal relationships that you develop with the OCC and the IJ. From a mile high view, prosecutorial discretion is exercised on an institutional basis. Put another way, there are mechanisms available for the practitioner to seek discretion through the various agencies: seeking DACA through USCIS; seeking AC through OCC, seeking to have ICE either not issue or cancel a Notice to Appear. In reality, sometimes these goals are truly (or only) accomplished because of the relationship that you have developed with the individual DHS employee.
Never forget why DHS agrees to positive discretion. They're rarely granting discretion out of some altruistic sense of justice and fairness. Sure these cases exists, but if you're relying on DHS to exercise discretion because your client is a "good guy" and has no criminal background, it's not very compelling. In virtually every case, they're granting discretion for one reason: efficiency. Hopefully your client is not a bad enough guy or has some redeeming qualities that makes pursuing his case a very low priority at the moment.
This is where several of the prosecutorial memos that have come out over the years become so important. You can convince the OCC that it is not worth the effort by showing that your client does not fall within one of the three enforcement priority classifications. See, Jeh Johnson Memo, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014). You can boost your case by showing that your client falls within one of the nineteen positive factors that OCC should consider in exercising discretion (or better yet one of the eight factors that prompt "particular care and consideration." See, John Morton Memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens (June 17, 2011).
So while it may be true that you are making a request to an institution, the institutional power flows through the individual CIS, OCC, ICE, etc. employee that you are dealing with. Consequently, it is imperative that your request be made within the framework of how the institution has stated its power will be exercised. For example, your written request could contain bullet points or a chart specifying the specific factor to be considered followed by your explanation of how your client meets that particular criteria (with the attached evidence neatly organized and tabbed). Make the DHS employee's job easy; point them to the evidence that puts them in a position to justify their decision if they are ever called to account.
NO - PROSECUTORIAL DISCRETION AIN'T ALL IT'S CRACKED UP TO BE
It's not relief in court
You're appearing at the master hearing and seek to have the case continued to allow a DACA application to be adjudicated or maybe your client has already been granted DACA and you seek to have the case administratively closed (especially where the OCC is in agreement). Instead of granting the continuance or the AC, the judge vociferously states, "DACA is not relief!" and then proceeds to put you on the spot to assert your (possibly nonexistent) relief. Judge's know that your client can still benefit from DACA even if they have a removal order. Consequently, some IJs take the position that by ordering the person removed, the case is disposed of instead of the black hole that the case will fall into if the IJ grants AC. Don't fall for it!
Judges constantly love to tell practitioners that AC is a tool for the court's convenience (not the parties) and then cite to Matter of Avetisyan, 25 I&N Dec. 688, 694 (BIA 2012). The IJ may even assert that because the underlying reason for administrative closure is to manage the court's docket, the court is not obliged to grant AC for the convenience of the government! While this is true in a strict sense - the judge does not have to grant AC even if the parties agree - managing the court's docket is not the only reason that administrative closure exists. In fact, Matter of Avestisyan also states that the BIA has not tried to define the universe of reasons that AC may be appropriate. Avestisyan at 696.
One obvious reason that should be asserted is that the parties are unequivocally stating that there is no dispute at the moment. If the IJs ultimate responsibility is to be a neutral arbiter of the legal dispute between the United States government and your client, then it seems an apparent abuse of discretion to deny an agreed upon Motion for AC and require the parties to maintain a state of litigation.
Another obvious reason is that by denying a Motion for AC, the IJ is essentially dictating to the OCC the circumstance in which they may and may not apply their enforcement resources. In such a scenario the IJ would be exerting authority over the labor, time and financial resources of the OCC - authority the IJ definitely does not have! The IJ is in no more of a position to tell the OCC toward whom they must devote their enforcement resources, any more than he or she is justified in telling a practitioner what strategy they must use in pursing relief.
If the IJ refuses to grant the Motion for AC, then reserve appeal, even if that means filing an interlocutory appeal. It is well known that the BIA disfavors considering interlocutory appeals but there is anecdotal evidence that the BIA sees this scenario differently. From my experience, the BIA has consistently overturned IJ decisions in which there was a denial on an agreed Motion for AC. The import of overturning the denial of the AC is that the BIA recognizes that there could be several different reasons for administratively closing the case, but forcing the parties to continue litigating isn't a reason to keep the case open.
Further, it is no stretch to assert that one of the reasons for the existence of DACA is to not put the beneficiary in a position that they are under threat of punishment (removal) because they are here without status through no fault of their own. The very existence of DACA implies that these individuals should not be saddled with a removal order regardless of whether they can still pursue the benefit. If an IJ insists on issuing a removal order, it is imperative to push back and reserve appeal if necessary.
Doesn't allow official to overcome the law
It should go without saying, but it may be a good reminder that prosecutorial discretion is limited to the particular agency's authority. This scenario becomes an issue where a practitioner, knowing that the law does not permit an exercise of discretion, unscrupulously sells the potential client on the idea that they will contact the relevant agency and seek prosecutorial discretion. When the request is denied, the attorney invariably explains to the client how unfair the decision is, but sends the client home with nothing more than a pat on the back. A similar scenario arises for practitioners that have little contact with the practical aspects of removal cases or how IJs and the trial attorney's view such requests. This is not to say that such a practitioner intends to mislead a potential client, only that the practitioner simply does not have the experience to properly advise a potential client, which leads to the unintended consequence that the client is left with an expectation level that does not meet reality. If you are unfamiliar with the practical aspects of seeking prosecutorial discretion, it is better to seek the advice of a practitioner who does before raising your client's hopes.
For example, if your client has been convicted of a felony, they are not going to be granted DACA. Filing such an application seeking CIS' positive discretion should be a nonstarter. Another example, and one highlighted in the Practice Advisory mentioned above, is one in which your client is subject to mandatory detention under INA §236(c). Again, it is a nonstarter to approach ICE or the OCC seeking that they permit your client to be released under any conditions. However, nothing prevents a practitioner from attempting to convince ICE to cancel the NTA (if it hasn't already been filed with the court) or to convince the OCC to terminate proceedings (if it has already been filed with the court).
It's not necessarily a humanitarian tool
If being a "good guy" was a basis for remaining in the United States, there certainly wouldn't be 12 million undocumented immigrants in the country. Unfortunately, far too often
practitioners attempt to craft a request for prosecutorial discretion based on the belief that their client is simply a good guy and that, in itself, makes the person not an enforcement priority and worthy of discretion. This does not discount the creative advocacy that is often required but there is certainly an undefined line that is crossed when leading a potential client to believe that prosecutorial discretion is a legitimate possibility when the reality is something entirely different.
The exercise of discretion is not designed to solve your client's removal problems just because they haven't committed any crimes and actually pay their taxes (although it helps!). As stated above, the enforcement arm of DHS is not in the philanthropy business - they're in the removal business. If seeking discretion is the only card you have to play, it is vital that you craft your request in such a way that DHS agrees that your client is not a priority. The great part is that, at least in the case of ICE, they have provided the playbook through the various enforcement memos mentioned above. Applying the facts of your case to the discretionary factors cited in the memos ensures that ICE or the OCC can hang their hat on your well-crafted request, and exercise the discretion you are seeking .
1 The author is aware of one attorney that maintained a "score card" of cases in which the BIA overturned a particular IJ that constantly denied agreed Motions for AC. At one point, the list was over 30 in about a year's time span!