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U.S Immigration and Customs Enforcement - ICE - Memorandum for OPLA Attorneys, 2017

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O./]ice of the Principal Legal Advisor
lJ.S. Department of Homeland Security
500 12th St. SW, Mail Stop 5900
Washington, DC 20536-5900

AUG l 5 2017

U.S. Immigration
and Customs
Enforcement

MEMORANDUM FOR:

All OPLA Attorneys

fROM:

Tracy Short
Principal Legal Adviso ·

SUBJECT:

Guidance to OPLA Attorneys Regarding the Implementation of the
President's Executive Orders and the Secretary's Directives on
Immigration Enforcement

In coordination with the U.S. Department of Homeland Security (DHS), Ot1ice of the General
Counsel (OGC), the Office of the Principal Legal Advisor (OPLA) provides this additional
guidance to implement former Secretary John Kelly's February 20, 2017, memorandum,
E1?fbrcement ofthe Immigration Laws to Serve the National Interest (Interior Enforcement
Memorandum). 1 This guidance builds upon Acting General Counsel Joseph Maher's August l O;
2017, memorandum, Implementing the President's Immigration Enforcement Policies, and
further details the processes that OPLA attorneys will implement in executing the Department's
enforcement priorities and exercising prosecutorial discretion.2

I.

DHS's Enforcement Priorities:

In support of the Secretary's Interior Enforcement Memorandum, OPLA attorneys are directed to
prioritize legal services supporting the timely removal of the following aliens:
1.
2.
3.
4.

Aliens described in sections 212(a)(2), (a)(3),and (a)(6)(C), 235(b) and (c), and
237(a)(2) and (a)(4) of the Immigration and Nationality Act (INA);
Aliens who have been convicted of any criminal offense;
Aliens who have been charged with any criminal offense that has not been
resolved;
Aliens who have committed acts which constitute a chargeable criminal offense;

1

Available at https://www.dhs .gov/sites/default/files/publications/l 7_ 0220_ S l_ Enforcement-of-the-ImmigrationLaws-to-Serve-the-National-lnterest.pdf (outlining the role of DHS in implementing Executive Order No. 13,768,
Enhancing Public Safety in the Interior rif the United Slates, 82 Fed. Reg. 8799 (Jan. 25, 2017)).
2

This memorandum incorporates the Acting General Counsel's memorandum, and all OPLA attorneys should be
familiar with the memorandum when implementing this guidance.

www.ice.gov

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Implementation of the President's Executive Orders and the Secretary's Directives
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5.
6.
7.
8.

Aliens who have engaged in fraud or willful misrepresentation in connection with
any official matter before a government agency;
Aliens who have abused any program related to receipt of public benefits;
Aliens who are subject to a final order of removal but have not complied with
their legal obligation to depart the United States; or
Aliens who, in the judgment of an immigration officer, otherwise pose a risk to
public safety or national security.

These priorities serve as a guide for OPLA attorneys to focus OPLA's limited resources in
executing U.S. Immigration and Custom Enforcement's (ICE) mission. Cases within the
categories prescribed should be prioritized over other cases, and resources should be focused
accordingly. However, the fact that an individual alien does not fall within one of these
categories does not preclude an enforcement action against that alien.
At the same time, in implementing this guidance, OPLA attorneys are reminded that the
positions they take may affect the entire Department, including other components such as U.S.
Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP).
Accordingly, OPLA must ensure appropriate coordination with other interested component
counsel offices and DHS OGC headquarters divisions.
II. Cases Previously Administratively Closed for Prosecutorial Discretion:
Effective immediately, each Office of Chief Counsel (OCC) should review all cases previously
administratively closed for prosecutorial discretion to determine whether the basis for
administrative closure remains appropriate under OHS 's enforcement priorities. These cases
should be reviewed with consideration given to the underlying basis for administrative closure as
well as protecting the public safety and national security interests of the United States. 3 The
OCCs should prioritize, on a case-by-case basis, filing motions to recalendar in administratively
closed cases where there is a criminal history or evidence of fraud.

III. EOIR Docket Efficiency:
The efficient litigation of proceedings before the Department of Justice Executive Office for
Immigration Review (EOIR) is a key strategic priority of DHS. See Memorandum from John
Kelly, Secretary of Homeland Security, Implementing the President's Border Security and
Immigration Enforcement Improvements Policies 6-7 (Feb. 20, 2017) (discussing the
"unacceptable delay" in average case processing times before the immigration courts). 4 Delays
in the removal process frequently benefit the removable alien, and adversely impact the ability of
3

If the matter was administratively closed for any reason other than prosecutorial discretion (e.g., awaiting
adjudication by USCIS), the decision on whether to file the motion to recalendar will be made by the Chief Counsel,
or his or her designee, on a case-by-case basis after appropriate consultation with the relevant components, such as
with users regarding the status of that application and the likelihood of its approval.
4

Available at https://www.dhs.gov/sitcs/dcfault/filcs/publications/17_ 0220 _ S l _Implcmcnting-thc-PrcsidcntsBorder-Security-Immigration-Enforcement-Improvemcnt-Policics.pdf.

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Implementation of the President's Executive Orders and the Secretary's Directives
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DHS to enforce the immigration laws. Accordingly, OPLA leadership at the headquarters and
field levels should coordinate with EOIR to ensure that aliens who meet the above enforcement
priorities remain on active immigration court dockets, and that their cases are com leted as
expeditiously as possible, particularly for detained aliens. b)(S)
b)(5)

ore uce

IV. Witness Testimony:
To better prosecute removal proceedings, prior guidance regarding approval for witness
testimony in removal proceedings is hereby rescinded. 5 ~b)(S)
Kbl(S)

I

(b)(S)
!When a proposed witness 1s an
employee of another DHS component agency (e .g. , CBP or USCIS)¥bH5)
(b)(5)
(b)(5)
order to safeguard the interest of the government, thl(b)(S)
(b)(S)
Kb)(S)

I
lln

I

I

V. Prosecutorial Discretion:
OPLA is the legal representative for ICE and is also the legal representative for DHS in all
exclusion, deportation, and removal proceedings before EOIR. See 6 U.S.C. § 252(c). As such,
prosecutorial discretion related to these proceedings is most directly exercised by the OCC
attorneys appearing in immigration court every day, subject to direction from their chain of
command and applicable ICE and DBS guidance. Opportunities to exercise prosecutorial
discretion may arise at different stages of the removal process, and discretionary decisions can
take different forn1s. Prosecutorial discretion is the longstanding authority of an agency charged
with enforcing a law to decide where to focus its resources and whether or how to enforce, or not
to enforce, the law against an individual. In the context of OPLA 's role in the administration and
enforcement of the immigration laws, prosecutorial discretion will take different forms and
applies to a variety of determinations made eve1y day.
It is OPLA's policy to exercise prosecutorial discretion in a manner that furthers the safety of the
American people and the faithful execution of our Nation's immigration laws against all
removable aliens. Prosecutorial discretion is an act of administrative leniency; it is not an

5

See Email Message from Riah Rarnlogan, ICE Employee Testimony in Immigration Court (Aug. 6, 2013 ).

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Implementation of the President's Executive Orders and the Secretary's Directives
Page4
entitlement. No individual classes or categories of removable aliens are excluded from
enforcement. The decision to favorably exercise prosecutorial decision will be made on a caseby-case basis after considering prevailing ICE and DHS guidance, the Department's enforcement
priorities, the individual facts presented, and any federal interest(s) implicated (e.g., federal court
litigation-related considerations, de-confliction with law enforcement ptiorities of other
agencies). OPLA attorneys are empowered to exercise prosecutorial discretion throughout the
removal process consistent with this guidance.
There will be no formal process by which an alien's attorney or an interested party may
6
affirmatively request a favorable exercise of prosecutorial discretion. OPLA attorneys already
review each case many times throughout the removal process, thus eliminating the need for
further review at the alien's request.
There is no appeal from a denial of prosecutorial discretion. The decision of the local Chief
Counsel on prosecutorial discretion is, as a matter of practice, conclusive. 7 Should any
government official outside of an OPLA attorney's chain-of-command direct or request that
OPLA make or revisit a prosecutorial discretion decision, the OPLA attorney should promptly
refer that communication to his or her immediate supervisor(sJ and, as determined by the
Principal Legal Advisor or a Deputy Principal Legal Advisor, to appropriate OGC officials.
Regardless of which government official makes such a request for prosecutorial discretion, it
must be made in wtiting, and the OPLA attorney handling the case must document the request in
PLAnet, identifying the specific official making the request, and uploading any supporting
documentation consistent with existing standard operating procedures. 9
Below, further guidance is provided for the exercise of prosecutorial discretion in certain
contexts.

a. Declining to File a Notice to Appear (NTA), Administrative Closure, and Dismissal
of Proceedings
When a legally sufficient NT A has been issued, it will be filed with the immigration court and
proceedings against the alien will be litigated to completion by OPLA, unless either ICE
leadership affirmatively indicates in writing that the agency has d.e cided it will not expend
6

OPLA will no longer be required to monitor or use email inboxcs dedicated solely for the submission of requests
for prosccutorial discretion.
7

In exceptional circumstances, the

b)(S)

(b)(S)
8

Although most requests for prosecutorial discretion are directed to OPLA attorneys in the field, some requests may
be directed to OPLA attorneys at headquarters. As such, OPLA attorneys are responsible for ensuring that these
requests are elevated to the Deputy Principal Legal Advisor for FLO, Enforcement and Litigation, or General and
Administrative Law, as appropriate.
9

Ifthc case involves classified information, the OPLA attorney must transmit such information in accordance with
the OHS Safeguarding Classified & Sensitive But Unclass(fied Information Reference Pamphlet, Office of the Chief
Security Officer (Feb. 2012), and all other applicable policies.

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Implementation of the President's Executive Orders and the Secretary's Directives
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detention or removal resources on the case, 10 or the NTA-issuing agency does not object to
exercising prosecutorial discretion based on information brought to the component's attention by
OPLA. (bJ(5l
{b)(5)

Cases in which the filing of an NTA with EOIR or continued litigation of removal proceedings
may merit particularly careful consideration include:

1._ Member or Immediate Relative ofa Military Service Member 14
If an alien is a member or immediate relative of a current or former member of the Armed
Forces, including the United States Army, Air Force, Navy, Marine Corps, Coast Guard, or a
member of a reserve component of the armed forces or National Guard, a favorable exercise of
discretion may be appropriate, particularly where the individual may qualify to apply for U.S.
citizenship under sections 328 or 329 of the INA. 15
10

In this context, "ICE Leadership" refers to the ICE Director, ICE Deputy Director, or the Executive Associate
Director or Deputy Executive Associate Director for Enforcement and Removal Operations (ERO).
11

The list of mailboxes is available HERE.

(b)(5)

b)(5)

14

To the extent not inconsistent with Secretary Kelly's memoranda, OPLA attorneys may continue to refer for
guidance on this issue to Victor X. Cerda, issuance of Notices to Appear (NTA), Administrative Orders ofRemoval,
or Reinstatement of a Final Removal Order on Aliens with United States Militmy Service (Sept. 3, 2004), and Marcy
M. Forman, issuance of Notices to Appear, Administrative Orders of Removal. or Reinstatement of a Final Order of
Removal on Aliens with MilitmyService (June 21, 2004).
15

Relatedly, OPLA attomeys must follow ICE guidance related to the evaluation of claims to U.S. citizenship. See
ICE Directive 16001.2, Investigating the Potential U.S. Citizenship of Individuals Encountered by ICE (Nov. I 0,
2015).

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2. Clearly Approvable and Meritorious Benefit Applications

Where an alien has a clearly viable avenue available to obtain permanent legal immigration
status from USCIS and has not already had that application adjudicated by USCIS (e.g., he or
she is the beneficiary of a recently approved Fonn I-130, Petition for Alien Relative and appears
primafacie eligible for adjustment of status; and USCIS appears likely to favorably adjudicate a
Form I-485, Application to Register Permanent Residence or Adjust Status), it may be
appropriate to give the alien an opportunity to allow that adjudication to proceed in lieu of
removal proceedings. Only if such an alien does not fall within any of the enforcement priorities
outlined in Section I, supra, the Chief Counsel, or his or her Deputy Chief Counsel, may agree to
administrative closure or dismissal of the case, as this will conserve OPLA and EOIR
resources. 16 In cases where an alien with pennanent collateral immigration relief available falls
within a DHS enforcement priority and/or would need a waiver to qualify for such relief,
declining to file the NT A or agreeing to administrative closure or dismissal will generally not be
•
17
appropnate.
3. Extraordinmy Humanitarian Factors

The Chief Counsel may consider the exercise of prosecutorial discretion when extraordinary
humanitarian factors become apparent during NT A review or litigation of the case and were
clearly not considered by the NT A-issuing field office component. This may include a situation
where the alien has significant mental health issues that make further litigation of a case before
EOIR untenable, where an alien has a U.S. citizen child with a serious medical condition or
disability, or where the alien or a close family member is undergoing treatment for a potentially
life-threatening disease.
4. Significant Law Enforcement Bene.fit
Where an alien is a cooperating witness, confidential informant, or is otherwise significantly
assisting state or federal law enforcement, it may be appropriate in ce1iain cases to defer the
initiation or completion of removal proceedings for a specified period. However, law
enforcement equities will generally best be assessed by ERO in conjunction with any exercise of
prosecutorial discretion it wishes to consider at the conclusion of removal proceedings (e.g., stay
16

When such cases were initiated by CBP or USCIS ~(b)(S)

(b)(5)

17

OPLA attorneys should not exercise their prosecutorial discretion to agree to the administrative closure of
removal proceedings for the purpose of allowing a removable alien to seek a provisional waiver of unlawful
presence through the filing ofFom1 I-60IA, Application for Provisional Unlawful Presence Waiver. Ifan alien
makes an administrative closure request for such a purpose and docs not fall within DHS's cmTent enforcement
priorities, the assigned OPLA attorney may agree to a reasonable period of voluntary departure to enable the alien to
leave the United States and apply for any immigration benefits and available waivers at a U.S. diplomatic mission
abroad.

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Implementation of the President's Executive Orders and the Secretary's Directives
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of removal, deferred action). In any event, the protection of the homeland and associated
security considerations must be paramount in deciding whether to continue litigating removal
proceedings.

b. Prosecutorial Discretion before EOIR in the Context of Appeals and Motions
In our immigration system, DHS initiates removal proceedings and immigrationjudges (Us) and
the Board oflmmigration Appeals (BIA) exercise the Attorney General's delegated authority to
adjudicate issues ofremovability and relief and protection from removal. IJ decisions are
entitled to respect, but OPLA attorneys always possess the discretion to take legally viable
appeals of IJ decisions and make appropriate legal arguments in response to alien appeals and
motions. 18 Specific scenarios that arise in the context of appeals and motions are discussed
below.

1. Waiving Appeal of!J Decisions
All 0 PLA attorneys may waive appeal on behalf of DHS when an IJ grants an application for
relief or protection from removal. However, appeals should be waived in such instances only
when OPLA has determined that the alien satisfied the legal standard of proof required and that
the alien merited any favorable exercise of discretion received, particularly where derogatory
information exists. Moreover, when no legally viable basis for appeal exists, OPLA attorneys
may waive appeal in the event an IJ dismisses removal proceedings sua sponte or on an alien's
motion. Where an OPLA attorney is not satisfied that the IJ's decision is proper, reserving
appeal is appropriate because it ensures that the IJ fonnalizes his or her ruling in a full opinion
that can be further considered by DHS. In particular, appeal should be reserved in cases
involving detained aliens, criminal aliens, or aliens posing a national security or public safety
risk to the United States, absent clear statutory or precedential basis for not appealing, or a
detem1ination that the facts of the individual case may adversely impact the likelihood of success
on appeal or the overall development of the law. (b}(5}
b}(5}

2.

Appeals

Existing OPLA policy generally provides that OCCs prosecute appeals before the BIA in
19
conjunction with the Immigration Law and Practice Division (ILPD). OCCs and ILPD should
continue to work together, along with any other relevant headquarters divisions or sections to
craft strong appellate written work product. 2 Collaboration between the OCCs and OPLA

°

IH OPLA headquarters divisions should coordinate with OGC headquarters and component counsel offices when
preparing briefs and motions in significant litigation.
19

See Gwendolyn Keyes Fleming, Promoting Excellence in OPLA 's Advocacy Before the Board ofImmigration
Appeals (Feb. 22, 2016). Special procedures apply in the context of national security and human rights violator
cases. See Email Message from Riah Ramlogan, OPLA Supplemental Guidance on the Proper Handling of National
Security and Human Rights Violator Cases (May 28, 2015).
20

ILPD should, in turn, coordinate with OGC and other affected OHS component counsel offices, as appropriate.

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Implementation of the President's Executive Orders and the Secretary's Directives
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headquarters helps to ensure legal sufficiency, national consistency, and strong advocacy.
Quality appellate advocacy is important, but OPLA must also work to promote efficiency before
EOIR. To this end, OPLA attorneys should generally limit briefing schedule extension requests
before the BIA and, in detained matters, should not request briefing extensions without prior
approval from a supervisor.
3. Remands

Generally, decisions to agree to remand cases (either from the BIA to the IJ or from the federal
courts to EOIR) should not be based solely on humanitarian factors. OPLA should file or
support a motion to remand only when the existing record needs to be further developed in order
to properly assert or defend DHS's position or when dictated by a broader litigation strategy as
determined by DHS. 21
4. A1otions to Reopen

As the Supreme Court has recognized, "[t]here is always a public interest in prompt execution of
removal orders . ... The continued presence of an alien lawfully deemed removable ...
'permit[s] and prolong[s] a continuing violation of United States law."' Nken v. Holder, 556
U.S. 418, 436 (2009) (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
490 (1999)). Accordingly, in the interest of administrative finality, motions to reopen should be
opposed if submitted by a fugitive, an alien who has failed to comply with an order to present
himself or herself to ICE, or an alien who has previously ignored a lawful removal order.
Further, unless specifically directed otherwise in writing by their chain-of-command, OPLA
attorneys should oppose motions to reopen absent a legal defect in the underlying removal order
or extraordinary circumstances that would warrant adding another case to the immigration court
docket. 22

21 The Depmtment of Justice's (DOJ) Office of Immigration Litigation (OIL) issued guidance in 2005 on the issue
of remands of removal proceedings from the federal courts to the BIA. See Thomas W. Hussey, Remand of
Immigration Cases, Revised (Nov. 10, 2005). This is DOJ ruidance that is not direct! im acted b Secretm
Kelly's memoranda, (b)(S)
For
reference, OIL 's memoran um out mes t e Cll'cumstances un er w 1c 1
w1 sec to reman a case, as we as
OIL's remand procedures. The circumstances described in OIL's memorandum arc expansive, and include the
remand of cases where prosecuting the case "would be patently inappropriate (i.e., where the case is a compelling
candidate for the possible exercise ofprosecutorial discretion)." IfOIL seeks to remand a case as a matter of
prosecutorial discretion, an OCC should immediately elevate the case to FLO. Please be aware that OIL's
memorandum references a corresponding OPLA guidance document, William J. Howard, Prosecutorial Discretion
(Oct. 24, 2005), and provides that OIL may seek to remand a case for the reasons set out in that guidance. However,
that OPLA guidance document has now been superseded in light of the Executive Orders, DHS implementation
guidance, and the instant memorandum. See supra note 1.
22 The decision of a Chief Counsel or Deputy Chief Counsel whether to agree to jointly file a motion to reopen so
that an alien can circumvent the time and numerical restrictions on motions to reopen, see, e.g., 8 C.F.R. §
I 003.2( c)(3)(iii), usually will be final and not subject to review. In deciding whether to join in such motions, OPLA
field managers should be mindful of the ~trong DHS interest in administrative finality and the federal resources
already expended on a case.

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Implementation of the President's Executive Orders and the Secretary's Directives
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c. Bond Proceedings
OPLA should

b)(S)

n the absence of information not already
considered by ERO, OPLA attorneys appearing before EOIR in bond proceedings should make
all legal and factual arguments to ensure that ERO's interests and discretiona custod authori
are vi orousl defended. OPLA attome s should b)(S)

(b)(5)

(b)(5)

s
iv1s1ons or sections to

(b)(5)

VI. Official Use Disclaimer

This memorandum, which may contain legally privileged information, is intended For Official ·
Use Only. Specifically, it contains discussion oflegal strategy, outlines parameters of the
attorney-client relationship, and is intended solely to provide internal direction to OPLA
attorneys and staff regarding the implementation of Executive Orders and D HS guidance. It is
not intended to, does not, and may not be relied upon to create or confer any right or benefit,
substantive or procedural, enforceable at law or equity by any individual or other party, including
in removal proceedings or other litigation involving DHS, ICE, or the United States, or in any
other form or manner whatsoever. Likewise, this guidance does not and is not intended to place
any limitations on DHS's otherwise lawful enforcement of the immigration laws or the Department's
litigation prerogatives.

23

DHS and EOIR regulations recognize that, as a prerequisite for even being considered for discretionary release by
an ICE officer under INA § 236(a), an alien "must demonstrate to the satisfaction of the officer that such release
would not pose a clanger to property or persons, and that the alien is likely to appear for any future proceeding." 8
C.F.R. §§ 236. l (c)(8) and 1236.1 (c)(8) (emphasis added).
24

Existing OPLA guidance on automatic and discretionary stays remains in effect. See, e.g., Barry O'Melinn,
Revised Procedures.for Automatic Stay of Custody Decisions by Immigration Judges (Oct. 26, 2006).

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