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AILA Doc. No. 22111701 | Dated November 17, 2022
As the Supreme Court prepares to hear oral arguments in United States v. Texas, this resource page offers background information on the historical use of prosecutorial discretion, its importance as a tool for Immigration & Customs Enforcement (ICE), and AILA’s support for the Biden Administration’s efforts to use prosecutorial discretion as it conducts immigration enforcement.
In September 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued enforcement priorities to the immigration enforcement workforce. As previously done by leaders of DHS and legacy Immigration & Naturalization Service (INA), Secretary Mayorkas outlined what factors made someone a priority for immigration enforcement. The policy took effect on November 29, 2021. Before these guidelines, DHS had issued a set of interim priorities, which were also challenged in court, but remained in effect until November 29, 2021.
Since then, two federal lawsuits brought and led by Texas and Ohio along with other states have challenged the September 2021 (final) enforcement priorities. Both states asked for preliminary injunctions to temporarily restrain the Biden administration from relying on Secretary Mayorkas’s enforcement guidelines pending litigation. In the Ohio lawsuit, the Sixth Circuit stayed a lower court’s preliminary injunction. However, in the Texas case, a district court went as far as to strike down the enforcement guidance. This led to the enforcement guidance being vacated as of June 25, 2022, pending appeal.
It is the Texas case, United States v. Texas, that is before the Supreme Court. At issue, is whether the state plaintiffs can prevent the Biden Administration from adopting and implementing its enforcement guidelines. This has implications for all migrants, regardless of whether they are in or outside of immigration detention. For additional information on the litigation, see SCOTUS Refuses to Stay District Court’s Vacatur of Mayorkas Enforcement Memo (AILA Doc. No. 22061302).
Cite as AILA Doc. No. 22111701.
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