Immigration Court Guidance on Prosecutorial Discretion

On September 28, 2023, David Neal, Director of the Executive Office for Immigration Review (EOIR), the agency running the nation’s immigration courts and the Board of Immigration Appeals, published guidance to immigration judges on the Department of Homeland Security’s enforcement priorities and prosecutorial discretion initiatives.

While prosecutorial discretion is exercised by DHS, not the immigration courts, the guidance indicated that EOIR adjudicators, including immigration judges and appellate immigration judges, should focus on cases where the noncitizen is a civil enforcement priority for DHS or desires a full adjudication of an application for immigration relief.

Under the new guidance, immigration judges should be asking DHS whether the noncitizen in immigration court is considered a civil immigration enforcement priority.  Where the answer is “no,” immigration judges should ask the parties for their views on how the case should be resolved. Resolutions may include dismissal, stipulations to relief, or other resolutions as appropriate.  If DHS wants dismissal, the guidance notes that the immigration judge should still consider any objections to the dismissal by the noncitizen and where a noncitizen wants to pursue relief, that is a valid reason for going forward with the case.

Appellate immigration judges, for cases at the Board of Immigration Appeals, are similarly encouraged to inquire whether the noncitizen is an enforcement priority and give the parties the opportunity to make requests for alternative resolutions for non-priority cases.

The Director’s Memo is welcome guidance as it reaffirms that immigration judges’ role as being to resolve disputes between the parties. Where the parties agree on a resolution, the immigration judge’s default should be to respect the agreement. At the same time, the Director’s Memo recognizes that many noncitizens do not want their cases dismissed and clarifies that where the noncitizen wants to go forward with the case to pursue an application for relief in immigration court, the case proceeding is consistent with EOIR’s efforts to conserve judicial resources even if DHS would prefer dismissal.