On April 3, 2022, Principal Legal Advisor Kerry E. Doyle issued a new memo that provides guidance to ICE attorneys about exercising prosecutorial discretion in immigration cases.

In the wake of this memo, the Department of Homeland Security (DHS) has frequently been seeking to dismiss clients’ asylum cases as an exercise of DHS discretion either through communications in advance of the individual merits hearings, or on the day of the hearing. DHS has also been filing motions to dismiss clients’ asylum cases; sometimes over the objection of the asylum seeker. In most NIJC asylum cases, dismissal will not be in the legal interest of NIJC clients. Though dismissal ends removal proceedings and avoids the immediate threat of a removal order, (1) it requires that the asylum application be withdrawn, (2) provides no path to protection or other lawful status in the United States, (3) terminates eligibility for employment authorization and other benefits related to a pending application for asylum, and (4) leaves the asylum seeker vulnerable to future enforcement action by DHS.

If you have an upcoming merits hearing, please communicate with your NIJC point of contact as soon as possible to discuss how dismissal or other types of prosecutorial discretion could impact your client.  It is critical that pro bono attorneys consult and prepare with their NIJC clients in advance to respond to DHS offers and/or motions for dismissal under the prosecutorial discretion memo.