12June 2021
Immigration Law: Changes Under the Biden Administration
Prosecutorial Discretion:
There has been a flurry of changes under the new administration. We will attempt to update them, one a time, on this page.
One of the most significant changes was the recent guidance entitled: “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities”
Here is a link to the full document.
In short, this is a revision to a similar policy under the Obama Administration in which new leadership is instructing its attorneys (“OPLA”) to use their prosecutorial discretion or “PD” to prioritize which cases to pursue. This PD can be exercised at any point in the proceedings and looks at factors like the person’s ties to the community, service to the community, lack of criminal convictions, USC family members and work history, among others. These factors are called “positive equities” and the guidance instructs OPLA to review cases and spend their time and resources on respondents who are threats to national security or public safety and not on respondents with positive equities.
It remains to be seen how this program will be implemented or how to make sure that OPLA is accountable and conducting these reviews, but its definitely a step in the right direction.