As published in the Immigration Daily on July 18, 2022

Confusion now appears to be the watchword in the area of prosecutorial discretion. The focus is upon DHS Secretary Alejandro Mayorkas’ prioritization memorandum of September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law, which sought to change immigration enforcement priorities from going after all undocumented immigrants to those who were threats to national security, public safety, and border security (those entering illegally on or after November 1, 2020). The guidelines were then followed by the Kerry Doyle memorandum on prosecutorial discretion on April 3, 2022, an attempt by DHS to significantly reduce the backlog of immigration court cases by empowering ICE chief counsels and their trial attorneys with the authority to dismiss or administratively close many cases of unlawful immigrants not barred by criminal acts, national, border, or public security questions, or certain types of immigration fraud.

Currently, there are conflicting decisions in the Fifth (Louisiana) and Sixth (Ohio) Courts of Appeals over the authority of the Biden Administration to prioritize classes of individuals for enforcement. In the Fifth Circuit, the court upheld a vacatur by the district court enjoining use of the earlier DHS Secretary Alejandro Mayorkas memorandum upon which the Doyle memo arguably rests. Texas v. US, No. 22-40367 (5th Cir. 7/6/22). The Sixth Circuit had just the day before upheld the Administration’s ability to prioritize in State of Arizona v. Biden, No. 22-3272 (6th Cir. 7/5/22). The Administration is now moving before the Supreme Court on an emergency application to stay the vacatur citing the Sixth Circuit’s decision.

Whether the Court will agree with the Government is up in the air, but it would appear that there are at least two factors in favor of lifting the vacatur – the Court has spoken unfavorably on the use of wide-ranging injunctions by a district court as recently as June in Garland v. Aleman-Gonzalez, 20-322 (S.Ct. 6/13/22) (which the Fifth Circuit dubiously distinguished saying that the district court judge here issued a vacatur which only reestablished the status quo), and recently gave the Administration a victory on the use of discretion in the enforcement of immigration laws at the border by striking down the Trump implemented Migrant Protection Protocols (MPP) which forced migrants to remain in Mexico during the time that their asylum applications were being decided. Biden v. Texas,  No. 21-954 (S.Ct.6/30/22).

In the meantime, the American Immigration Lawyers Association (AILA) is recommending that requests for prosecutorial discretion refrain from citing or relying on either Mayorkas or Doyle memo in any way as long as the vacatur is in effect. The ICE Office of the Principal Legal Advisor (OPLA) has noted the vacatur on its website and posted a notice that “Accordingly, until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.”