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). It is effective from April 25, 2022 and implements the September 30, 2021, guidance issued by Secretary Alejandro Mayorkas of the Department of Homeland Security (DHS). 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:
1. Priority A: Threat to National Security. A noncitizen who
a. engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or
b. who otherwise poses a danger to national security – whether noncitizen has perpetrated human rights violations in the past, threatening “our strong national interest in welcoming refugees.”
2. Priority B: Threat to public safety. A noncitizen who
a. poses a current threat to public safety because of serious criminal conduct. Depends on the seriousness of the criminal conduct and a balancing of the totality of the circumstances. OPLA attorneys will consider aggravating and mitigating factors
3. Priority C: Threat to border security. A noncitizen is a threat to border security if:
a. (a) they are arrested at the border or port of entry while attempting to unlawfully enter the United States; or
b. (b) they are arrested in the United States after unlawfully entering after November 1, 2020.
c. Threats to border security can also include cases where the noncitizen has a history involving serious immigration benefit fraud or smuggling of noncitizens.
Under Doyle Memorandum OPLA attorneys are reviewing the cases to check if they fall 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 priority1;
· Otherwise, ICE Attorney should identify the case as a nonpriority.
· For nonpriority cases, the Doyle Memorandum prefers
o Not filing an NTA or
o Promptly dismissing cases where an NTA has already been filed in order to “efficiently remove nonpriority cases from the docket altogether.”
· OPLA attorneys will 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.
