ICE’s new guidance on prosecutorial discretion may cut unneeded deportations

A new ICE guidance on prosecutorial discretion may provide a more rational approach to prosecuting cases of undocumented immigration. FILE

While the Biden Administration has significantly curtailed the arrest and deportation of immigrants without convictions but who are the U.S. without  authorization, the fact remains that 1.7 million pending cases in removal proceedings are clogging the immigration courts across the country.  These cases have accumulated over the years, dating back to Trump, Obama, and even George W. Bush.

One thing is clear:  the current immigration court system is unsustainable, unable to provide protect the due process rights of immigrants and their families, and represents a massive waste of scarce government resources. Instead of leveraging our tax dollars to target and deport hardened criminals, drug dealers, and violent predators, we are spending billions on a deportation system that is focused on peaceful individuals, many of whom are married to American citizens and have U.S. citizen children.  Their biggest crime?  They don’t have papers.

A new ICE guidance on prosecutorial discretion may provide a more rational approach to prosecuting cases of undocumented immigration.

There are now at least 11 million undocumented immigrants in the U.S.  In prior generations, Congress has viewed the undocumented issue from a different perspective.  From the 1980s all the way until 2001, there were laws that provided a path to legal status.  By paying a fine for the civilinfraction of not having immigration status, immigrants could come out of the shadows, get fingerprinted, and obtain a green card — often through family or employer sponsorship.

For over 21 years, due to the political benefits of riding the wave of xenophobia and anti-immigrant sentiment, Congress has refused to pass legislation to provide a path to legal status.

This has created a crisis in our immigration court system, which is incredibly dysfunctional and hearing dates are often pushed out years down the road, while families live in fear that they may never get due process and the opportunity to stay.

There may be relief ahead.

On April 3, 2022, Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued new guidelines for its attorneys regarding prosecutorial discretion.

The memorandum titled Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum) will be effective from 25^th April 2022. This memo is consistent with the memorandum titled Guidelines for the Enforcement of Civil Immigration Law issued on 30^th September 2021 and took effect on 29^thNovember 2021., issued by Department of Homeland Security Alejandro Majorkas (Mayorkas Memorandum).

The new memo provides a strong directive by the Biden administration to ICE attorneys that they must follow the time-honored tradition within the law that prosecutors should “do justice” — and prioritize scarce government resources in a way that maximizes public safety. The new memo updates and expands the exercise of prosecutorial discretion by ICE attorneys.  The Doyle Memo streamlines ICE process for designating enforcement priorities and provides greater discretion to ICE attorneys to exercise various forms of prosecutorial discretion in individual cases.

What is Prosecutorial Discretion?

An immigration prosecutor has the authority to make a decision regarding placing a person in immigration court and charging them with removability, or even terminating an existing deportation case.  This is called prosecutorial discretion.

Prosecutorial Discretion is a wide range of authority that even allows offering plea bargains to a defendant. For example, a law enforcement officer gives you a warning for speeding and lets you go while they can charge you.

ICE is the representative of the Department of Homeland Security (DHS) in immigration removal proceedings before the United States Department of Justice’s Executive Office for Immigration Review (EOIR). Moreover, the OPLA has the power to use prosecutorial discretion. The OPLA attorneys can decide how they want to proceed and which cases to focus on. For instance, they can agree to remove a case from the immigration court through administrative closure or dismissal.

How Does PD Work?

OPLA lawyers assess your cases independently to decide whether they should use PD or not. Moreover, you can submit a request for PD. Once they receive your submission, they calculate if it is an enforcement priority using the Mayorkas and the Doyle Memoranda.

OPLA reviews the data of your case and considers all the factors to decide about the priority.

Should You Apply for PD?

Nonpriority Cases

Firstly, OPLA evaluates if your case is a priority for enforcement or not. If it is a nonpriority case, OPLA is highly likely to use PD such as not filing the Notice to Appear (NTA). For instance, if they have filed NTA already, OPLA will use PD by dismissing the removal proceedings without prejudice.

Depending on the case, they may opt for requests for relief, waiving appeal, a reduced bond amount, administrative closure, and other methods.

Priority Cases

When OPLA evaluates that your case is a priority for enforcement, they don’t use PD and refuse to apply for NTA, termination, administrative closure, or dismissal.

In some cases, OPLA still uses PD if your case is a priority. In addition, you can provide evidence to change the status of priority. OPLA lawyers can independently reevaluate your case if they get new information. If they change the priority status, they may support your PD request.

The Civil Immigration Enforcement Priorities

For civil immigration enforcement, the Mayorkas Memorandum has defined three priorities. OPLA attorneys are asked to use their resources on noncitizens that are a threat to border security, public safety, or national security.

In this section, we will talk about these three priorities. Moreover, we will share how OPLA attorneys determine priorities.

The Mayorkas Memorandum Priorities

Let’s talk about three priorities of the Mayorkas Memorandum:

• Threat to National Security

Noncitizens who are suspected or involved in espionage or terrorism-related activities are a priority. Moreover, people who are dangerous to national security also come under this priority.

• Threat to Public Safety

Noncitizens that are involved in criminal activities are a threat to public safety. Hence they are a priority for removal. When they pose a threat to the public, they are not determined with bright categories. Instead, it requires a detailed analysis of the circumstances and the conduct of the individual.

• Threat to Border Security

When a noncitizen is dangerous to border security, they will be considered a priority for removal. They are considered a threat when:

• They are captured at the port or border of the United States while trying to enter illegally.
• They are captured in the United States and they entered the country after 1^st November 2020.

In addition, there may be some other scenarios that ask law enforcement agencies to remove the person. Depending on the facts and circumstances, there may be some favor for an individual case.

The Bottom Line

The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.

In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA.  In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.

But one thing is clear.  With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process.  This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.

On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.

This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion.  It is anticipated that specific guidance on process will be provided.

For more information on how to submit a request for PD, please see the ICE Website.

Richard Herman is a nationally renowned immigration lawyer, author, and activist.  He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”  He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.