ICE Issues Clarifying Memo on Prosecutorial Discretion in Immigration Court
On April 3, 2022, Immigration and Customs Enforcement (ICE) Principal Legal Advisor Kerry E. Doyle issued a memorandum to all ICE Office of the Principal Legal Advisor (OPLA) attorneys providing guidance on exercising prosecutorial discretion (PD) in removal proceedings (Doyle Memorandum). The Doyle Memorandum will be effective on April 25, 2022.
Background and Summary of Memo Text
The Doyle Memorandum implements the Sept. 30, 2021, guidance issued by Secretary Alejandro Mayorkas of the Department of Homeland Security (DHS) (Mayorkas Memorandum). In doing so, the Doyle Memorandum rescinds and replaces the memorandum issued by former Principal Legal Advisor John D. Trasviña on May 27, 2021.
The Doyle Memorandum explains how OPLA interprets three enforcement priority areas identified in the Mayorkas Memorandum: national security, public safety, and border security. The Doyle Memorandum defines these terms in the following way:
Priority A: Threat 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. When determining whether a noncitizen otherwise poses a danger to national security, OPLA attorneys are to consider whether the noncitizen has perpetrated human rights violations in the past, threatening “our strong national interest in welcoming refugees.”
Priority B: A noncitizen who poses a current threat to public safety because of serious criminal conduct. Whether a noncitizen poses such a threat turns on the seriousness of the criminal conduct and a balancing of the totality of the circumstances. OPLA attorneys should consider aggravating and mitigating factors, described in the Mayorkas Memorandum, in their analysis.
Priority C: A noncitizen is a threat to border security if: (a) they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) they are apprehended in the United States after unlawfully entering after November 1, 2020. Threats to border security can also include cases where the noncitizen has a history involving serious immigration benefit fraud or smuggling of noncitizens.
Next, the Doyle Memorandum directs OPLA attorneys to review their cases for indicia that the case falls within one of the three enforcement priorities. If the noncitizen appears to pose a threat to national security, public safety, or border security, the reviewing attorney should classify the case as a priority; otherwise, the attorney should identify the case as a nonpriority. Notably, the Doyle Memorandum requires OPLA attorneys to seek management review solely where they determine a case is a priority or to change a previous priority determination, not where they initially classify a case as a nonpriority.
The Doyle Memorandum then goes on to discuss how OPLA should exercise PD, as early in the proceedings as possible, in six contexts: (1) not filing or canceling Notices to Appear (NTAs); (2) moving to administratively close or continue removal proceedings; (3) moving to dismiss removal proceedings; (4) pursuing appeals; (5) stipulating to issues, joining in motions to grant relief, and joining motions to reopen or remand; and (6) taking positions in bond cases. OPLA attorneys are generally directed to litigate priority cases “to completion,” and only consider exercising PD in response to affirmative requests made by such respondents.
For nonpriority cases, the Doyle Memorandum emphasizes its preference, over all other forms of PD, for not filing an NTA or promptly dismissing cases where an NTA has already been filed in order to “efficiently remove nonpriority cases from the docket altogether.” OPLA attorneys should take such action after a review of the respondent’s Federal Bureau of Investigation fingerprint-based background check. Where a respondent has not yet completed one, OPLA attorneys should require that respondent to do so prior to exercising PD.
In keeping with this emphasis on removing cases from the docket, OPLA attorneys are to move affirmatively to dismiss cases without prior management approval or concurrence from a represented respondent or his or her counsel. Practitioners representing respondents who do not want their cases dismissed from immigration court must be prepared to oppose dismissal in writing in a timely fashion. Cases involving unrepresented individuals also are to be dismissed unless consultation with management, and the respondent concludes that another action would be more appropriate.
OPLA attorneys are otherwise encouraged to exercise PD in the other above-named contexts, keeping in mind the limited resources available to the agency and any compelling factors in an individual case. Cases for which administrative closure may be most appropriate include, for example, where “illness of the noncitizen … currently prevents their participation in removal proceedings to pursue a form of relief not otherwise available to them where the illness is expected to resolve in the foreseeable future.” OPLA attorneys may also consider agreeing to continuances, keeping in mind “more efficient forms of prosecutorial discretion than repeated continuances to accommodate adjudication of any ancillary applications.”
In those cases which OPLA attorneys determine a respondent is eligible for relief and merits discretion, they are encouraged to narrow issues and stipulate to any procedural, factual, or legal issue(s), as appropriate. Importantly, this form of PD is not limited to nonpriority cases – OPLA attorneys are likewise encouraged to exercise such discretion in priority cases, including where a noncitizen appears eligible for mandatory protection from removal via withholding or protection under the Convention Against Torture.
Under the Doyle Memorandum, appellate advocacy should focus on priority cases, “absent a compelling basis to appeal a nonpriority case.” However, OPLA attorneys may continue to reserve appeal in order to ensure a fully articulated, reasoned decision by the immigration judge. Keeping in mind compelling discretionary factors in any given case, OPLA attorneys may take those appeals needed to seek clarity on an important legal issue or correct a systematic legal error but must do so judiciously.
Notably, in considering whether to join motions to reopen, OPLA attorneys should focus on cases where noncitizens are moving to reopen in order to dismiss the case and seek relief before USCIS. While OPLA attorneys may join motions to reopen by respondents seeking to pursue newly available relief before immigration court where the attorneys find the noncitizens qualify both under the law and in their discretion, early engagement with OPLA indicates such joinders will be rare.
Finally, OPLA attorneys are authorized to waive the appearance of DHS at certain hearings in non-detained cases, including: (1) master calendar hearings, (2) in absentia hearings where evidence of removability has been submitted to the court or removability has been previously established, or (3) individual hearings on a case-by-case basis. Such waiver of appearance may be warranted where OPLA deems an issue adequately addressed by motion or brief position statement.
Given the emphasis placed on the affirmative dismissal of proceedings by DHS, practitioners representing noncitizens who want to proceed on their applications for relief in immigration court must be prepared to oppose dismissal when proposed by DHS. Otherwise, where practitioners determine that a particular form of PD is warranted, whether it be dismissal, stipulation to factual or legal issues, or a joint motion to reopen, advocates are encouraged to engage with OPLA attorneys and urge such action.
Local Field Offices of OPLA have been directed to implement Standard Operating Procedures (SOPs) dedicated to receiving PD requests from respondents. In the coming weeks, practitioners should look out for notifications from their Local Field Office for stakeholder engagement meetings, as encouraged by the Doyle Memorandum, where the new guidance and specific SOPs will be discussed. These SOPs will describe the specific steps practitioners should take locally to request PD or respond to OPLA’s proposed PD. Advocates can also review OPLA’s FAQ on the Doyle Memorandum for more guidance.