Federal Court Blocks ICE’s Ability to Offer Prosecutorial Discretion
On June 10, 2022, the U.S. District Court for the Southern District of Texas issued an order vacating Homeland Secretary Alejandro Mayorkas's September 30, 2021, memorandum concerning what is commonly known as Prosecutorial Discretion. The memorandum, named “Guidelines for the Enforcement of Civil Immigration Law,” provided a breakdown to Immigration and Customs Enforcement (ICE) attorneys on what cases are and are not priorities to pursue removal or deportation. The memorandum also provided various opportunities for certain individuals in removal proceedings to request Prosecutorial Discretion from ICE’s attorneys. The Court’s decision was held through June 24, 2022, to allow the Fifth Circuit Court of Appeals the opportunity to decide whether or not to let the memorandum remain as good policy. However, the Fifth Circuit did not rule on the government’s motion for a stay on June 24 and the vacatur thus took effect. It is to be seen whether the government continues to pursue this court case. For now, ICE has confirmed that it will not apply or rely on the Mayorkas memo in any manner. In general, ICE, like other law enforcement agencies, are entitled to their own prosecutorial authority. ICE retains the authority to pursue or not pursue deportation cases it believes are, or are not, priorities. Ibrahim Law Office can confirm reports that certain ICE lawyers and certain Immigration Judges are still implementing Prosecutorial Discretion by dismissing cases in certain situations. This suggests that individuals in removal proceedings who wish to pursue it should request prosecutorial discretion in appropriate circumstances, highlighting the facts and reasons why prosecutorial discretion is appropriate. On the other hand, Ibrahim Law Office can confirm that the ICE lawyer’s office for Chicago informed immigration attorneys in the area that it will end implementation of the Mayorkas memo and will decide on how best to move forward in light of the court decision. The American Immigration Lawyers Association (AILA) has requested further information from ICE on how it will handle prosecutorial discretion requests. Here at Ibrahim Law Office, we will also continue to monitor developments surrounding prosecutorial discretion. We encourage you to contact an Immigration Attorney if you have any doubts about how this important decision impacts your case.
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