Featured Issue: Prosecutorial Discretion

On June 23, 2023, the U.S. Supreme Court issued a decision on a challenge brought by Texas and Louisiana to the Biden Administration’s enforcement priorities guidance. This resource page will provide general information about the case, 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. For practice-related information, members should review our Featured Issue Page: Representing Clients Before ICE.

Litigation History of USA v. Texas

In September 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued enforcement priorities to the U.S. immigration enforcement workforce. As previously done by leaders of DHS and legacy Immigration & Naturalization Service (INS), 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.

Two federal lawsuits were filed challenging the September 2021 final enforcement priorities. Both lawsuits asked for preliminary injunctions to temporarily restrain the Biden Administration from relying on Secretary Mayorkas’ enforcement guidelines pending litigation. In the Ohio lawsuit, the Sixth Circuit stayed a lower court’s preliminary injunction. However, in the Texas case known as USA v. Texas, 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 to the Supreme Court.

The Supreme Court was asked to determine whether the state plaintiffs could prevent the Biden Administration from adopting and implementing its own set of enforcement guidelines. This had implications for all noncitizens, regardless of whether they were in or outside of immigration detention. Ultimately, the Supreme Court found that Texas and Louisiana lacked Article III standing to challenge the enforcement guidelines that prioritized the arrest and removal of noncitizens who are suspected terrorists, a public safety threat, or who have recently unlawfully entered the country.

Attorney Resources

• Practice Alert: ICE Reinstates Mayorkas Enforcement Priorities and Doyle Memo
• IDP, ILRC, and NIP: Practice Advisory for Criminal Defense Attorneys: The Biden Administration’s Final Enforcement Priorities

AILA Statements

• SCOTUS: Biden Administration ICE Guidelines Withstand States’ Challenge – June 23, 2023
  AILA welcomed the SCOTUS decision in U.S. v. Texas which upholds the prerogative of the executive branch to set agency guidelines; AILA President Farshad Owji called the decision a clear message, adding “The states that attempted to derail this commonsense approach were in the wrong.”
• AILA President Jeremy McKinney Responds to SCOTUS Move Keeping ICE Priorities On Hold – July 21, 2022
  In this statement, AILA President Jeremy McKinney responds to the U.S. Supreme Court 5-4 vote to maintain a nationwide injunction blocking the Biden Administration from setting prosecutorial discretion policies for ICE. The court also decided to take up the case in December.
• New ICE Guidelines for Its Attorneys Prioritize Prosecutorial Discretion – April 6, 2022
  AILA welcomed the recent memo from ICE Principal Legal Advisor Kerry Doyle directing prosecutors “to use their discretion to look for opportunities to resolve cases promptly and in the interest of justice for all parties involved.” The memo will take effect April 25, 2022.
• AILA: Implementation Will Show if New ICE Guidelines Go Far Enough – September 30, 2021
  AILA welcomed new guidelines announced by Department of Homeland Security Secretary Alejandro Mayorkas which would shape actions by Immigration and Customs Enforcement (ICE) agents across the country.
• AILA Recommendations on Biden Administration Enforcement Priorities – July 31, 2021
  AILA offers recommendations to DHS on how to improve the interim enforcement priorities and ensure consistent implementation.
• AILA and Partners Send Letter to President Biden on DOJ Reform of Immigration Courts and Enforcement Priorities – February 1, 2021
  On February 1, 2021, AILA, along with 164 immigration, civil rights, and human rights organizations, sent a letter to President Biden urging reforms to ensure that the Department of Justice (DOJ) establishes fairness and integrity in the immigration courts and the immigration enforcement system.

American Immigration Council Resources

• U.S. Citizen Children Impacted by Immigration Enforcement – June 24, 2021
  Deportations of parents and family members have serious consequences that affect children and extend to communities and the country as a whole.
• New Report Examines Biden’s Approach to Immigration Enforcement – May 20, 2021
  A new American Immigration Council report examines the Biden administration’s approach to the U.S. system of immigration enforcement during its first 100 days in office.

Government Releases

• ICE Provides FAQs on Prosecutorial Discretion and OPLA – July 26, 2022
  ICE provided FAQs related to prosecutorial discretion and the ICE Office of the Principal Advisor. The FAQs were updated to reflect policies now that the Mayorkas Memo has been vacated due to litigation.
• DOL FAQs: Process for Requesting DOL Support for Requests to DHS for Immigration-Related Prosecutorial Discretion During Labor Disputes – July 6, 2022
  DOL released FAQs for workers and their representatives on the process for requesting DOL support for requests to DHS for immigration-related prosecutorial discretion during labor disputes.
• CRS Releases Updated Legal Sidebar on the Biden Administration’s Enforcement Priorities – June 8, 2022
  CRS provided an updated legal sidebar on the Biden administration’s immigration directives. The report notes prior immigration enforcement policies, Biden’s immigration enforcement priorities, and current legal considerations.
• ICE to Consider Military Service When Determining Civil Immigration Enforcement – May 23, 2022
  ICE announced a policy directive to consider U.S. military service when making discretionary determinations with regard to civil immigration enforcement actions against noncitizens.
• Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum) – April 3, 2022
  On April 3, 2022, ICE issued a memorandum, Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum). The memo is effective April 25, 2022.
• DHS Issues Updated Guidance on the Enforcement of Civil Immigration Law – September 30, 2021
  DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.

Twenty Years of Prosecutorial Discretion in Immigration Enforcement

• The End of Immigration Enforcement Priorities Under the Trump Administration – March 7, 2018
  The American Immigration Council provides a fact sheet that explains the shift in enforcement philosophy under the Trump administration and outlines the effects of this change. This approach to enforcement diverts the attention of law enforcement agencies from those who are serious public threats.
• American Immigration Council - The President’s Discretion, Immigration Enforcement, and the Rule of Law – August 26, 2014
  The President has the legal authority to make a significant number of unauthorized migrants eligible for temporary relief from deportation that would be similar to the relief available under the Deferred Action for Childhood Arrivals (DACA) program.
• CRS Report on Prosecutorial Discretion in Immigration Enforcement – January 17, 2013
  Congressional Research Service (CRS) report from 1/17/13 called "Prosecutorial Discretion in Immigration Enforcement: Legal Issues" which addresses the constitutional and other legal foundations and issues related to the doctrine of prosecutorial discretion.
• ICE Memo on Prosecutorial Discretion for Long-Term, Same-Sex Partners – October 5, 2012
  An ICE memo dated 10/5/12 clarifying how prosecutorial discretion should apply to family relationships involving long-term, same-sex partners, including information on which same-sex relationships “rise to the level of family relationships.”
• American Immigration Council: Special Report- Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System – April 11, 2012
  Discretion takes many forms throughout the immigration enforcement process. Every removal of a noncitizen from the United States, for example, reflects a series of complex choices which reflect discretion.
• Prosecutorial and Custody Discretion for Nursing Mothers – November 7, 2007
  Memo from ICE Assistant Secretary Julie Myers regarding exercise of prosecutorial discretion for arrest and custody determinations for nursing mothers.
• ICE Prosecutorial Discretion Memo – October 24, 2005
  A 10/24/05 memo from William Howard, ICE Principal Legal Advisor, discussing factors to be considered prior to commencement or continuation of removal proceedings.
• INS Memo on Exercising Prosecutorial Discretion – November 17, 2000
  A 11/17/00 memo from Doris Meissner, Commissioner (INS) outlining considerations and procedures for the exercise of prosecutorial discretion in all stages of the enforcement process.

Academic

• Leading Law Professors to Mayorkas: “Prosecutorial Discretion guidelines need not be focused on who to deport, but who can stay.” – August 24, 2021
• Legal Scholars Letter on President Authority to Exercise Discretion – November 25, 2014
  A letter from 135 law professors on the legal basis for granting certain noncitizens in the United States “deferred action” status as a temporary reprieve from deportation.

Media

• News Channel 3: 10-year old St. Jude patient, mother nearly deported – August 12, 2022.
  Article quoting AILA Member Lily Axelrod, “By any measure or any regime, this should not be a priority for enforcement, and I thought if ICE is going to try to do this in secret, people need to know about it.”
• LA Times: ICE has resumed deporting unsuspecting immigrants at routine check-ins – July 12, 2022
• Mississippi Free Press: Family, Advocates Seek Freedom for 28-Year-Old Woman Facing Illness Behind Bars – April 13, 2022

Cite as AILA Doc. No. 22111701.