Immigration is an area of law prone to frustrating backlogs in case processing. On April 3, 2022, Immigration and Customs Enforcement (ICE) Principal Legal Advisor Kerry Doyle published a memorandum (Doyle Memo) on prosecutorial priorities and discretion. The Doyle Memo produced a swift policy change that transformed immigration removal defense strategy by broadly expanding the possibilities of a somewhat informal avenue of relief: case dismissal under prosecutorial discretion. The Doyle Memo expressly sought to address major case backlogs in the immigration courts by providing guidelines for how Department of Homeland Security (DHS) prosecutors exercise discretion in dismissing removal cases against noncitizens who did not fall within enumerated priority categories. Just over four months after the Doyle Memo’s publication—and as immigration lawyers, immigrants, and DHS prosecutors were adjusting to the prosecutorial priorities that it set forth—a decision by the U.S. District Court for the Southern District of Texas negated its effects by vacating another DHS memorandum (Mayorkas Memo) that the Doyle Memo relied on. The court’s decision to vacate the Mayorkas Memo undercut efforts to frame prosecutorial discretion in a way that could have reduced the daunting case backlog in removal proceedings experienced by U.S. immigration courts today.
Under U.S. immigration law, DHS may place noncitizens within the geographic bounds of the United States into removal proceedings if those noncitizens are subject to one or more grounds of inadmissibility or deportability under the Immigration and Nationality Act (INA) Section 212 or 237, respectively. Before the beginning of the COVID-19 pandemic, individuals in removal proceedings experienced lengthy wait times for adjudication of their removability through individual merits hearings. Between court closures associated with the pandemic and a steady stream of newly initiated cases, the case backlog ballooned to an estimated 1.6 million cases pending before the Executive Office for Immigration Review (EOIR), the administrative body that adjudicates immigration removal cases, as of December 2021.
A May 2021 memorandum issued by ICE’s then Principal Legal Advisor characterized the case backlog and case resolution delays as “imped[ing] the interests of justice for both the government and respondents alike and undermin[ing] public confidence in this important pillar of the administration of the nation’s immigration laws.” The Mayorkas Memo, issued in September 2021, estimated that there were then over 11 million noncitizens living in the United States without documents or who otherwise could be found removable. In 2019, the EOIR faced what was then a record-breaking 547,280 newly initiated removal cases. In contrast, the EOIR completed a total of 277,074 cases that year, just over half the number of new cases, without factoring in the backlog of unresolved cases initiated in previous years also pending before the courts at that time. Whether the focus is placed on enforcement of immigration laws outside the courtroom or cases currently pending before the EOIR, the backlog in immigration matters is substantial and appears likely to remain an obstacle to resolving currently pending and future immigration matters.
In response to the case backlog and in an effort to manage the government’s limited capacity for enforcing and adjudicating removability claims, DHS and ICE issued a series of memoranda from 2021 through 2022 on removal enforcement priorities. The first memo was released the same day as a Biden Administration executive order that redefined the executive branch’s immigration priorities concerning the removal of noncitizens with immigration law violations. The initial interim guidance memos and the executive order were followed by a pair of more detailed memos issued by the Secretary of Homeland Security Alejandro Mayorkas and by ICE’s Principal Legal Advisor Kerry Doyle, each on the topic of prosecutorial discretion and underscoring the role of prosecutorial decisions to prioritize cases as a tool to manage immigration case backlogs and enable greater efficiency in the system. The latter of those memos (the Doyle Memo) set an expectation that prosecutors under DHS’s Office of the Principal Legal Advisor (OPLA) would use their discretion at all stages of enforcement and that their discretion would be consistent with priorities set forth in the Mayorkas Memo.
The guidance provided in these memos was intended to “ensure that finite DHS resources are used in a way that accomplishes the Department’s enforcement mission most effectively and justly.” The Doyle Memo reiterated three groups of individuals previously identified in the Mayorkas Memo as removal priorities: (1) “threat[s] to national security;” (2) “threat[s] to public safety;” and (3) “threat[s] to border security.” The Doyle Memo then set forth expectations for OPLA attorneys’ decision-making and documentation of enforcement priority determinations, ultimately assigning responsibility for reliance on the Mayorkas categories to Chief Counsel or Deputy Chief Counsel and requiring recording decisions based on those categories in OPLA’s case management system. Additionally, the Doyle Memo enumerated a number of circumstances in which OPLA prosecutors could exercise prosecutorial discretion in alignment with the guidance and the framework provided in the Mayorkas Memo. The Doyle Memo also included a list of mitigating and aggravating factors for prosecutorial consideration.