ICE prosecutorial discretion guidance

This week the Immigration and Customs Enforcement agency released guidance about the Biden administration’s approach to immigration court cases. Removal proceedings—the formal name for what most people refer to as deportation proceedings—are to be governed by the detailed memo issued on April 3 by ICE’s Principal Legal Advisor Kerry E. Doyle. In turn, the Doyle Memo builds on a separate memo issued in September 2021 by Secretary of Homeland Security Alejandro Mayorkas.

On behalf of the Biden administration, the Mayorkas Memo identified three priorities for DHS officials to use when making decisions about who to apprehend or attempt to remove from the United States. I’ve written about that memo previously. The Doyle Memo provides detailed guidance to the lawyers who represent DHS in removal proceedings. Housed within ICE’s Office of the Principal Legal Advisor, those 1,250 lawyers technically work under Doyle, currently the agency’s Principal Legal Advisor, but previously a long-time immigration defense attorney.

The new memo makes much of the inherent nature of prosecutorial discretion afforded all government attorneys. Before even touching on the administration’s priority areas, the memo describes prosecutorial discretion as “an indispensable feature of any functioning legal system.” Described that way, the government’s power to choose which cases to bring is as fundamental as its role speaking on behalf of the public or a judge’s role as a neutral decision maker.

This is an important characterization because Republicans have decried the exercise of prosecutorial discretion as illegal at least since the days when President Obama sat in the White House. At times, they have been joined by ICE agents who claimed that Obama era prosecutorial discretion standards required them to flout federal immigration law.

Importantly, the Doyle memo provides specific guidance for ICE trial attorneys to use when determining whether to initiate or move forward with removal proceedings. After reviewing the various considerations identified in the Doyle memo, a trial attorney is required to classify a matter within one of the administration’s three priorities or list it as a nonpriority case. Trial attorneys should not initiative removal proceedings in nonpriority cases. Where a removal case has already started in a nonpriority case, ICE trial attorneys are supposed to ask the immigration judge to terminate the legal proceeding.

Mirroring the Mayorkas Memo, the Doyle Memo identifies the administration’s immigration enforcement priorities as A) Threat to National Security, B) Threat to Public Safety, and C) Threat to Border Security. Here I’ll expand on the public safety threat priority only.

Adopting the emphasis on broad discretion as being inherent in prosecutorial decision making, the Doyle memo relies on comprehensive assessments of public safety risk. The memo explicitly notes that “convictions or prosecutions are not the only indicators” that ICE trial attorneys are to review. Indeed, “the existence of a criminal history alone, regardless of severity, will not necessarily indicate that a noncitizen presently poses a current public safety threat.”

Instead, the Doyle Memo instructs ICE trial attorneys to review a migrant’s circumstances to assess possible “aggravating and mitigating factors.”

Aggravating factors include:

• Gravity of the offense, including whether a child was victimized or the offense was of a sexual nature;
• Sentence imposed;
• Harm caused;
• Sophistication of the criminal offense;
• Use or threatened use of a firearm or dangerous weapon;
• Serious prior criminal record;
• Gang activity; and
• Harm to public health.

There are some remarkable features to this list of aggravating factors. Unlike some past versions of ICE’s prosecutorial discretion guidelines, the Doyle Memo doesn’t turn heavily on categorical assessments of crime. Guidance issued in November 2014 under President Obama, for example, prioritized migrants “convicted of an offense classified as a felony” as well as people “convicted of an ‘aggravated felony’.” Though felony classification relies on state or federal criminal law and “aggravated felony” classification turns on federal immigration law, prioritizing both means ignoring the underlying facts that led to conviction as well as what came after. By contrast, the Doyle Memo clearly requires ICE trial attorneys to situate the conviction within a broader life context. In doing that, they are to look at equities in a migrant’s favor which the memo refers to as “mitigating factors.”

Mitigating factors include:

• Age;
• Lengthy presence in the United States;
• Mental condition;
• Status as a victim or witness;
• Being a party in a legal proceeding;
• Impact on family in the United States;
• Eligibility for relief;
• Military or other public service;
• Rehabilitation;
• Expunged or vacated conviction;
• Pregnant, post-partum, or nursing;
• Lawful permanent resident status;
• Whether the arrest involved discrimination or retaliation; and
• Decriminalization of the criminal conduct.

Here again the Doyle Memo seems to require trial attorneys to put a migrant’s criminal activity within a broader context that looks back and forward: what happened, who was impacted, and, looking toward the future, who might be impacted by apprehension and removal?

This is an important development that shouldn’t be understated. Attorneys are equipped to exercise discretion and do so regularly. Prosecutors shouldn’t be any exception when they are making the supremely important decision about who to target with the full force of government authority and resources. In this sense, the Doyle Memo’s emphasis on holistic review is welcomed.

That said, an all-important question remains: will ICE headquarters be able to implement the Doyle Memo? Refocusing any agency is difficult, but ICE has a track record of reluctance when it comes to following along with liberalizing pushes by Democrats. In September when Mayorkas issued his memo, I wrote, “My major concern with today’s memo is whether DHS leadership will be able to turn the secretary’s directive into meaningful practices across the country.” Admittedly, foot dragging has previously come from ICE’s enforcement officers rather than its corps of attorneys. Still, the Biden administration can’t alter ICE’s decision making without effectively informing field staff that they are expected to follow along—and that consequences will flow from failure to do so.

In an attempt to impose oversight over trial attorney decisions, the Doyle Memo requires them to add “prosecutorial discretion decision-making information” to the OPLA’s internal database. That’s certainly a start. OPLA can’t ensure that trial attorneys are complying if they don’t know what trial attorneys are doing. But knowing isn’t the same thing as doing. What is OPLA going to do with the information they gather? The Doyle Memo is slated to go into effect on April 25, 2022. We’ll have to wait until well after that to see how it is being implemented.

The Doyle Memo’s prosecutorial discretion prioritization scheme is likely to get the most attention, but there’s another section that strikes me as equally significant. In Part III, the memo parts way from current practices. Today, ICE trial attorneys are always present in immigration court when removal cases are being heard. The Doyle Memo promises to change that. According to the memo, “regulations do not require DHS to assign counsel to every removal proceeding.” When counsel is assigned, the memo goes on to specify instances in which the government can elect to waive its own lawyer’s appearance. This means that moving forward DHS might be unrepresented in immigration court.

All of us who are familiar with immigration court are used to seeing unrepresented parties, but it’s usually migrants who don’t have lawyers. The government is always represented. If we take Part III at its word, that won’t be the case for long for three types of non-detained hearings: master calendar hearings, “in absentia hearings where evidence of removability has been submitted to the court or removability has been previously established,” and some individual calendar hearings.

I’ll be interested to know what immigration judges make of situations in which the government is not represented. Many immigration judges dislike having migrants appear without counsel. How will they feel about the government failing to send a lawyer? And what happens when immigration courts need to make important decisions and the government isn’t represented?

With the Doyle Memo issued, the key pieces are in place to build the framework for the Biden administration’s removal practices. Now that we know what the administration says it wants to accomplish, we have to start asking whether they will succeed.