New ICE Guidelines for Its Attorneys Prioritize Prosecutorial Discretion

Washington, D.C. — The American Immigration Lawyers Association (AILA) welcomed the April 3, 2022, memorandum issued by the Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry Doyle intended to direct ICE’s resources to the Administration’s enforcement priorities, reduce backlogs, and ensure a fairer process. The memo is effective April 25, 2022.

AILA President Allen Orr stated, “We welcome this memo from ICE leadership which clearly lays out the commitment to the longstanding principle of ‘prosecutorial discretion’ which is a cornerstone of every law enforcement agency’s practice across the nation. With this memo, prosecutors are directed to use their discretion to look for opportunities to resolve cases promptly and in the interest of justice for all parties involved. This memo, if implemented broadly, should help address the backlogs in immigration court proceedings that are now so severely delayed as to keep asylum seekers and people applying for green cards waiting years for a hearing before the court. Prosecutorial discretion is nothing new or original but is nonetheless a vital law enforcement policy which this memo makes clear will govern all ICE OPLA prosecutor decisions.”

AILA Executive Director Benjamin Johnson added, “This memo is a key step forward and, if implemented as written, will result in a more efficient and fairer immigration enforcement and judicial system. The memo outlines factors that prosecutors should consider when weighing whether a situation warrants further prosecution, including careful consideration of humanitarian factors. The memo emphasizes the time-honored principle that all prosecutors have an obligation to do justice in each case. Finally, the memo urges ICE OPLA attorneys to consider all forms of prosecutorial discretion, including dismissal of proceedings, stipulation to specific issues such as relief or release from custody, administrative closure, or filing a Notice to Appear, among others.”

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Cite as AILA Doc. No. 22040651.