Criminal Defense of Immigrants

(B)  Factors to Consider.  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.[202]

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).[203]

Exercise of prosecutorial discretion is permissible at any time in the proceedings.[204]  For example, the government may move for dismissal in immigration court after the NTA was issued and filed.[205]  The Commissioner encourages exercising discretion earlier in the proceeding rather than later.

[202] Meissner Memo at 6.

[203] Id. at 7-8.

[204] Meissner Memo at 6.

[205] 8 C.F.R. § 239.2.