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Immigration practitioners have been poring over their cases with renewed vigor as new possibilities for relief unfold for some clients based on a revised policy out of U.S. Immigration and Customs Enforcement that expands the use of prosecutorial discretion to dismiss certain non-priority matters.

“It looks like the government is now willing to do things it previously wouldn’t do,” said Danielle Beach, who moderated an MSBA Immigration Section webinar, How to Get the Government to Assist Your Client – Prosecutorial Discretion, on July 28.

Beach, along with fellow panelists John Greene and Rachel Ullman, spent an hour breaking down the latest policy guidance that was laid out in a memo from ICE Principal Legal Advisor, John Trasviña, in May. Since then, the Washington and Baltimore offices have issued their own relevant guidance.

“Contact every immigration lawyer you know,” said Greene, who is now based in San Diego. Greene said prosecutorial discretion can be requested in virtually every case that has an immigration proceeding, even if a removal order has already been entered.

Ullman said the government will reopen cases where it is appropriate, and courts will accept such stipulations for dismissal in non-priority cases under the new policy.

The government is even advising its own lawyers to proactively think about dismissing some cases that fit the prosecutorial discretion framework even if it isn’t requested, the panelists noted.

Panelists walked the attendees through a myriad of considerations that attorneys should weigh when advising current and former clients about this change in immigration policy.

This included tips for practitioners to consider when deciding how much information to turn over to the government in a request for prosecutorial discretion.

Candor to a tribunal is crucial, they all agreed. Within that duty, however, lawyers can make strategic choices on behalf of their clients, they said.

Ullman described how turning over virtually anything that won’t hurt the client can establish more credibility for the request. On the other hand, Greene cautioned against providing the government with too much information, especially needless fluff, and urged lawyers to consider how any information could be later used against the client.

Each client’s specific circumstances could mean they might benefit more from administrative closure of the case, rather than dismissal under this expanded policy of prosecutorial discretion, panelists said.

Administrative closure might benefit a client’s work situation. If the case is dismissed and the client lacks work status, they could be worse off. Panelists discussed how lawyers should go over the pros and cons of prosecutorial discretion and tell them how it compares to other options like administrative closure.

Clients need to understand the options to make an informed decision as to which is in their best interest, according to the panel.

Lawyers can also request alternative relief but should avoid making the court guess which one is preferred. Greene talked lawyers through ways to plead for alternative relief and make clear to the court which one you prefer.

The Trasviña memo excluded certain priority cases from the expanded prosecutorial discretion policy, including those deemed threats to national security, border security, or public safety.

Still, panelists showed attendees how those categories have a bit of wiggle room. The national security threat category, Greene pointed out, doesn’t apply to general criminal activity. The public safety category requires a current threat, which likely doesn’t apply to past criminal convictions, Greene said.

These priority enforcement categories are narrower than may seem at first glance, according to the panel.

“It’s not everything under the sun,” Greene said of the exclusions. “Trasviña really limits who is a priority.”

The webinar and written materials are available online for section members.