Effect of Department of Homeland Security Enforcement Priorities

OOD

PM 21-25

Effective: June 11, 2021

To: All Immigration Court Personnel & Board of Immigration Appeals Personnel

From: Jean King, Acting Director

Date: June 11, 2021

EFFECT OF DEPARTMENT OF HOMELAND SECURITY

ENFORCEMENT PRIORITIES

PURPOSE:

Provides EOIR policies regarding the effect of Department of Homeland

Security enforcement priorities and initiatives.

OWNER:

Office of the Director

AUTHORITY:

8 C.F.R. § 1003.0(b)

CANCELLATION:

None.

I. Introduction

President Biden issued Executive Order 13993 on January 20, 2021, and directed relevant agencies

to take appropriate action to review and “reset the policies and practices for enforcing civil

immigration laws to align enforcement” with the Administration’s priorities “to protect national

and border security, address the humanitarian challenges at the southern border, and ensure public

health and safety.” Exec. Order No. 13993, 86 Fed. Reg. 7,051 (Jan. 20, 2021).

Accordingly, the Department of Homeland Security (DHS) has issued a number of memoranda

and guidance documents regarding its enforcement priorities and framework for the exercise of

prosecutorial discretion.

Those memoranda establish the DHS general enforcement and removal

priorities as three categories of cases of noncitizens who present risks to (1) national security, (2)

border security, and (3) public safety.

See, e.g., Memorandum from John D. Tasviña, Principal Legal Advisor, ICE, Office of the Principal Legal Advisor

(OPLA), to All OPLA Att’ys, Interim Guidance to OPLA Att’ys Regarding Civil Immigr. Enf’t and Removal

Policies and Priorities (May 27, 2021), available at

https://www.ice.gov/doclib/about/offices/opla/OPLA-

immigration-enforcement_interim-guidance.pdf; Memorandum from Tae D. Johnson, Acting Dir., ICE, to All ICE

Emps., Interim Guidance: Civil Immigr. Enf’t and Removal Priorities (Feb. 18, 2021), available at

https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf.

These DHS memoranda and DHS priorities do not change EOIR’s current adjudication priorities, which remain in

effect. See, e.g., PM 21-23, Dedicated Docket (May 28, 2021); Exec. Office for Immigr. Rev. Mem., Case Priorities

and Immigration Court Performance Measures (Jan. 2018).

JEAN KING

Digitally signed by JEAN

KING

Date: 2021.06.11

16:27:19 -04'00'

Through individualized review of pending cases, DHS, U.S. Immigration and Customs

Enforcement (ICE), attorneys will be determining which cases are enforcement priorities and

which are not. Overall, these memoranda explain that DHS will exercise discretion based on

individual circumstances and pursue these priorities at all stages of the enforcement process. This

includes a wide range of enforcement decisions involving proceedings before EOIR, such as

deciding whether to issue, reissue, serve, file, or cancel Notices to Appear; to oppose or join

respondents’ motions to continue or to reopen; to request that proceedings be terminated or

dismissed; to pursue an appeal before the Board of Immigration Appeals (BIA); and to agree or

stipulate to bond amounts or other conditions of release. Accordingly, these memoranda are likely

to affect many cases currently pending on the immigration courts’ and BIA’s dockets.

II. Role of the EOIR Adjudicator

The role of the immigration court and the BIA, like all other tribunals, is to resolve disputes. Cf. 8

C.F.R. §§ 1003.1(d) (“The Board shall resolve the questions before it in a manner that is timely,

impartial, and consistent with the Act and regulations.”), 1003.10(b) (“In all cases, immigration

judges shall seek to resolve the questions before them in a timely and impartial manner consistent

with the Act and regulations.”) (emphasis added). At the present time, there are over 1.3 million

combined cases pending before the immigration courts

and the BIA.

In light of the DHS

memoranda, it is imperative that EOIR’s adjudicators use adjudication resources to resolve

questions before them in cases that remain in dispute.

A. Immigration Court

Immigration judges should be prepared to inquire, on the record, of the parties appearing before

them at scheduled hearings as to whether the case remains a removal priority for ICE and whether

ICE intends to exercise some form of prosecutorial discretion, for example by requesting that the

case be terminated or dismissed, by stipulating to eligibility for relief, or, where permitted by case

law, by agreeing to the administrative closure of the case.

The judge should ask the respondent or

his or her representative for the respondent’s position on these matters, and take that position into

account, before taking any action.

In addition, immigration judges are encouraged to use all docketing tools available to them to

ensure the fair and timely resolution of cases before them.

Exec. Office for Immigr. Rev., Adjudication Statistics: Pending Cases, New Cases, and Total Completions, Apr.

19, 2021, available at https://www.justice.gov/eoir/page/file/1242166/download

Exec. Office for Immigr. Rev., Adjudication Statistics: Case Appeals Filed, Completed, and Pending, Apr. 19,

2021, available at https://www.justice.gov/eoir/page/file/1248501/download

Administrative closure is currently permitted in the Third, Fourth, and Seventh Circuits. See Arcos Sanchez v.

Att'y Gen. U.S.A., 997 F.3d 113 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020); Romero v.

Barr, 937 F.3d 282 (4th Cir. 2019). Administrative closure is currently permitted in the Sixth Circuit, but only to

allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence

waivers. See Garcia-DeLeon v. Garland, __ F.3d __, 2021 WL 2310055 (6th Cir., June 4, 2021). Administrative

closure is not currently permitted in the other circuits. See Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

B. Board of Immigration Appeals

Appellate immigration judges should be prepared to review and adjudicate motions from DHS

regarding prosecutorial discretion. In addition, appellate immigration judges may solicit

supplemental briefing from the parties regarding whether the case remains a removal priority for

ICE or whether the parties intend to seek or exercise some form of prosecutorial discretion. See 8

C.F.R. § 1003.1(e)(9) (“[T]he Board may rule, in the exercise of its discretion . . . , on any issue,

argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from

the parties on the issues to be considered before rendering a decision.”).

III. Conclusion

EOIR expects the parameters of the new DHS memoranda to focus DHS resources on cases that

meet the DHS-determined priorities. All EOIR adjudicators are encouraged to use docketing

practices that ensure respondents receive fair and timely adjudications, and act consistently with

the role of the immigration courts and the BIA in resolving disputes. That includes disposing of

cases as appropriate, based on the specific circumstances of the individual matter, with

consideration of ICE’s determinations that 1) a case does not fit within the Secretary’s enforcement

priorities, and 2) accordingly, pursuit is no longer in the best interest of the Government. If you

have any questions, please contact your Assistant Chief Immigration Judge or the Chief Appellate

Immigration Judge.

Nothing in this PM is intended to replace independent research, the application of case law and

regulations to individual cases, or the decisional independence of immigration judges and appellate

immigration judges as defined in 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10.