(B)  Prosecutorial Discretion.  In her memorandum dated November 17, 2000 (“Meissner Memo”), Commissioner Meissner stated:

 

Even when an immigration officer has a reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with the case.  This is true even when an alien is removable based on his or her criminal history and when the alien—if served with the NTA—would be subject to mandatory detention.[100]

 

This is also true when an order of removal is not obtainable.  Even if the removal order could be issued, the equities of the case may favor discretionary dismissal of proceedings.  Among the factors to be considered, the Commissioner lists:

 

·        immigration status (lawful permanent residents warrant greater consideration);

·        the length of residency (the longer the period of residency, the greater the equity in favor of the person charged);

·        the actual sentence imposed (as an indicator of the seriousness of the crime);

·        family ties in the United States and the country of origin (the former favor the person charged and so does the lack of the latter);

·        immigration history (no violation of immigration laws favors the person charged);

·        likelihood of ultimate success of removal (whether a removal proceeding would have a reasonable likelihood of achieving its intended effect, in light of the case circumstances such as the alien’s nationality);

·        eligibility for regularizing the status (discretion should be exercised even if Service cannot confer complete or permanent relief);

·        honorable military service (service with honorable discharge should be considered as a favorable factor).[101]

 

            Exercise of prosecutorial discretion is permissible at any time in the proceedings.[102]  For example, the government may move for dismissal in immigration court after the NTA was issued and filed.[103]  The Commissioner encourages exercising discretion earlier in the proceeding rather than later.

[100] Meissner Memo at 6.

[101] Id. at 7-8.

[102] Meissner Memo at 6.

[103] 8 C.F.R. § 239.2.

Fourth Circuit

AGGRAVATED FELONIES " RETROACTIVITY
Mondragon v. Holder, 706 F.3d 535, (4th Cir. Jan. 31, 2013) (retroactive application of 1996 expansion of aggravated felony definition to convictions predating its effective date did not violate the Constitution).

Ninth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " DEFINITION
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011). In Perez-Mejia v. Holder, the Ninth Circuit explained the elements of a successful claim of estoppel against the government: It is well settled ... that the government may not be estopped on the same terms as a private litigant. Watkins, 875 F.2d at 706. A party seeking to raise estoppel against the government must establish affirmative misconduct going beyond mere negligence; even then, estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability. Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir.2007) (quoting Watkins, 875 F.2d at 707). Moreover, a party cannot obtain estoppel against the government if he did not lose any rights to which he was entitled. Id. There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party. Watkins, 875 F.2d at 707 (citations omitted). If a litigant survives this initial inquiry, the court considers four elements to determine if the government is estopped: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709). (Id. at ___.)

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " GOVERNMENTS ERROR IN GRANTING LPR STATUS DESPITE CONVICTION DID NOT PREVENT IT FROM LATER CORRECTING ITS MISTAKE AND ORDERING REMOVAL
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (The government is not estopped by its error in granting Perez"Mejia LPR status from correcting its mistake and ordering his removal.).

Other

RELIEF - DEFERRAL OF REMOVAL
Political Asylum Project of Austin Press Release, Jul. 17, 2006. "San Antonio, TX - Martine Jean Pierre Gregory was released from the Department of Homeland Security, Immigration and Customs Enforcement (ICE) custody on Friday July 13, 2006, when ICE granted a favorable decision in her request for Deferred Action Status." http://www.bibdaily.com/pdfs/press.release.7.15.06.letterhead.pdf