U.S. Immigration and Customs Enforcement (ICE) issued a long-awaited memo on Sunday to guide ICE attorneys on exercising their prosecutorial discretion in immigration court.
Authored by ICE’s Principal Legal Advisor Kerry Doyle, the memo’s stated goal is to ensure that ICE focuses its limited resources effectively and pursues just outcomes. By encouraging prosecutors to seek dismissal of non-priority immigration court cases, ICE hopes to reduce the enormous and growing immigration court backlog.
The Doyle memo explains and expands upon the enforcement priorities outlined by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas in a September 30, 2021 memo. It discusses how ICE attorneys should implement those priorities in immigration court.
The Mayorkas memo lays out three categories of people who are considered priorities for DHS enforcement:
Mayorkas’ memo makes anyone who is accused or suspected of engaging in terrorism or espionage a priority.
In addition to terrorism or espionage, the Doyle memo explains that a person who has engaged in, or is suspected of engaging in, serious human rights violations may also pose a danger to national security.
The Mayorkas memo makes anyone who is perceived to be a threat to public safety, typically because of alleged criminal conduct, a priority. The memo lays out a non-exhaustive list of mitigating and aggravating factors for ICE to consider when determining whether a person presents a threat to public safety.
The Doyle memo emphasizes that a criminal conviction is not required to be considered a public safety threat. It highlights that gang involvement may make a person a public safety threat. But it also states that inclusion in gang databases—which have been widely criticized—is not determinative of whether a person is actually in a gang.
The Doyle memo clarifies that people who are applying for immigration benefits based on being the victim of a crime—including trafficking victims, victims of domestic violence, and abused or abandoned children—should not be considered a priority while U.S. Citizenship and Immigration Services considers their application.
The Doyle memo also includes additional aggravating and mitigating factors to consider. New mitigating factors include whether the person is a green card holder (legal permanent resident) and whether there was a discriminatory motive in the person’s arrest.
The Mayorkas memo makes anyone who attempts to enter or entered the United States unlawfully after November 1, 2020 an enforcement priority.
The Doyle memo says that a person involved in smuggling people into the United States or engaged in serious immigration benefit fraud may be considered a threat to border security, whether or not the person is charged with a crime. The memo explains that people who use fraudulent documents solely to flee persecution or for employment purposes would generally not be considered threats to border security.
Prosecutorial discretion is an important component of any law enforcement work. The idea is simple. Just because the government could punish someone for breaking a law, does not mean that it should. State troopers generally do not spend time or resources ticketing people for driving 5 or 10 miles an hour over the speed limit. Federal prosecutors do not pursue criminal charges against state-licensed marijuana sellers, even though it remains a violation of federal law.
The same principle has long applied to immigration enforcement, under Republican and Democratic administrations alike.
Nevertheless, some states have sued to block the enforcement priorities. A federal court in Ohio limited when ICE could use the Mayorkas memo when determining whether to release certain people subject to mandatory detention.
Under the Doyle memo, ICE prosecutors have been given the direction and the tools to exercise prosecutorial discretion for people it finds are not an enforcement priority. While the memo discusses different types of prosecutorial discretion, it states a strong preference for two forms:
- For cases not yet in immigration court, ICE prosecutors may choose not to start deportation proceedings.
- For cases already in immigration court, ICE prosecutors may choose to file a motion to dismiss the case, regardless of whether the person wants their case dismissed.
It is not surprising that ICE would prefer these two options. As of January 2022, there were over 1.5 million cases pending in immigration court.
There are significant limitations to the Doyle memo. It continues to link the criminal legal system to the immigration system, reinforcing the jail-to-deportation pipeline that disproportionately targets immigrants of color. It leaves discretion largely in the hands of line ICE prosecutors without enough details on oversight.
However, the Doyle memo is an important reminder to ICE prosecutors that they can and should dismiss cases and otherwise exercise their prosecutorial discretion to conserve resources, reduce the court backlog, and pursue justice. As the memo explains, “the government wins when justice is done.”