On May 5, 2021, the Third Circuit overturned the Board of Immigration Appeals decision in Matter of Castro-Tum, which greatly reduced the use of administrative closure in the immigration courts and at the Board. With the Third Circuit's decision, various avenues of relief are possible again including the provisional waiver. The former Attorney General's decision in this case highlighted the need for immigration courts to become Article I courts akin to bankruptcy courts which are mentioned in the same line as naturalization in the U.S. Constitution. There are many pitfalls to administrative closure so its grant is not always a victory.
ICE released new interim guidance on May 27, 2021, relating to OPLA's (aka OCC) handling of cases before the EOIR (immigration court and the Board of Immigration Appeals). The guidance essentially tells OPLA (the branch of ICE that handles administrative litigation before EOIR) that it has discretion to act like a normal prosecutor's office in its handling of cases. That means ICE may pick and choose which cases to prosecute (and which to dismiss, administratively close, offer deferred action, etcetera). The factors below will determine when ICE will exercise its discretion:
"In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen' s length of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances of arrival in the United States and the manner of their entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness of prior immigration violations ( e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality of the circumstances."
It remains unclear what impact this new guidance will have on how ICE behaves.