United States Immigration prosecutors have now been given broad discretion in which cases they decide to pursue or drop altogether, according to government guidance issued by chief ICE attorney John Trasviña. This guidance will assist in identifying opportunities at every stage of the immigration process to ensure the most just, fair, and legally appropriate outcome, whether that outcome is a grant of relief, an order of removal, or an exercise of discretion that allows the noncitizen to pursue immigration benefits outside the context of removal proceedings.

Trasviña has instructed his attorneys to follow the Biden administration’s priorities on focusing resources on public safety and national security threats, but also explained that prosecutors should consider an immigrant’s circumstances in cases. Trasviña wrote that prosecutors can assess someone’s ties in the United States, work history, or status as a victim or witness in a criminal proceeding when deciding whether to prosecute, dismiss, or delay cases.

Prioritization of finite agency resources is a consideration in all civil immigration enforcement and removal decisions, including but not limited to the following:

  • Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;
  • Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NT A);
  • Deciding whether to focus resources only on administrative violations or conduct;
  • Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;
  • Deciding whether to detain or release from custody subject to conditions or on the individual‘s own recognizance;
  • Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute through stipulation, or pursue appeal in removal proceedings;
  • Deciding when and under what circumstances to execute final orders of removal; and
  • Deciding whether to grant defe1Ted action or parole.

“The Biden Administration has now provided immigrants who previously had little or no chance with a path forward to legalization,” according to Orlando Immigration Attorney Chad Brandt.
Brandt said immigrants should consult with an experienced immigration attorney immediately because “these are major changes that will help a lot of immigrants who had no solutions before but do now.”

The guidance issued by Trasviña aims to also reemphasize the concept of prosecutorial discretion.

“Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the department’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence,” Trasviña wrote in his guidance memo.


For more information on new Immigration enforcement and removal policies and priorities please contact our experienced Orlando Immigration Attorneys.

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities Memo