What is OPLA and Prosecutorial Discretion?

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When individuals are in removal or deportation proceedings, their cases are handled by the Executive Office of Immigration Review (EOIR) otherwise known as the immigration court.

While in immigration proceedings, foreign nationals have the ability to contact the opposing government counsel and ask if they would be agreeable to certain terms – instead of asking the immigration judge first.

For example, the foreign national may want to ask the government for voluntary departure, instead of waiting for their next individual hearing. Also, a foreign national may want the court to dismiss or terminate their immigration proceedings so that they can file for an adjustment of status application at their local USCIS field office.

What Is OPLA?

The Office of the Principal Legal Advisor (OPLA) is an organization that works with the opposing government counsel to help accelerate the handling of cases before the immigration court. Foreign nationals can contact OPLA and ask for “Prosecutorial Discretion” (also known as PD) on their case.

Why Was OPLA Created?

According to the April 3, 2022 Doyle Memo, there are over 1.5 million cases before the Immigration Court and BIA. This number is expected to exceed 2 million by the end of 2022.  The goal of OPLA is to reduce the immigration court’s backlog.

What Is Prosecutorial Discretion?

Prosecutorial Discretion is the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources, including whether and how to enforce—or not enforce—the law against an individual.

Is Filing A Prosecutorial Discretion (PD) Request Difficult?

Yes.  Each city has its own OPLA rules.  Not following the prescribed guidelines will likely lead to a denial of an OPLA request.

My Prior OPLA Request Was Denied. Can I File A New One?

Yes. If your situation changes, you can file a new request and attach additional documents.

Who Qualifies For Prosecutorial Discretion?

Qualifications are fact-specific.  This being said, the U.S. government is very clear on who IS NOT qualified for Prosecutorial Discretion.  These individuals include:

Threats to National Security – A noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security.

Threats to Border Security – A noncitizen is a threat to border security if:

1. a) They are apprehended at the border or POE while attempting to unlawfully enter the US; or
2. b) They are apprehended in the U.S. after unlawfully entering after Nov. 1, 2022

Threats to Public Safety – A noncitizen who, typically, has committed serious criminal conduct. There are not bright-line rules, but rather requires an assessment of the totality of the circumstances, weighing mitigating and/or aggravating factors.

Which Agencies Under The U.S. Department Of Homeland Security (DHS) Can Provide Prosecutorial Discretion?

Qualifications are fact-specific.  This being said, the U.S. government is very clear on who IS NOT qualified for Prosecutorial Discretion.  These individuals include:

• Customs and Border Protection (CBP)
• Immigration and Customs Enforcement (ICE)
• U.S. Citizenship and Immigration Services (USCIS)

For more information on What is OPLA and Prosecutorial Discretion a consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 777-1236 today.