The ICE PD Roller Coaster Continues

In August of 2021, we published a post titled ICE’s Prosecutorial Discretion Roller Coaster detailing Department of Homeland Security (DHS) attempts to implement interim enforcement priorities and a federal court in Texas’s order thwarting their efforts.

On September 30, 2021, DHS Secretary Alejandro Mayorkas issued new, non-interim, Guidelines for the Enforcement of Civil Immigration Law (“Mayorkas Memo”).  The Mayorkas Memo laid out three categories of cases which would be considered enforcement priorities: (1) threats to national security, (2) threats to public safety, and (3) threats to border security.

On June 10, 2022, Judge Tipton of the U.S. District Court for the Southern District of Texas issued an order vacating the Mayorkas Memo as unlawful.  Judge Tipton stayed the effect of his order through June 24 to allow the Fifth Circuit Court of Appeals an opportunity to review his order and decide whether it should be further stayed.  After the Fifth Circuit declined to stay his order, the federal government applied for a stay with the U.S. Supreme Court.  On July 21, 2022, by a vote of 5-4, the Supreme Court also declined to issue a stay of Judge Tipton’s order.  The Supreme Court instead construed the federal government’s application for a stay as a petition for certiorari before judgment and scheduled arguments for December of 2022.  A decision on the merits of the case likely wouldn’t be issued until spring or summer of 2023.

This means that for the time being, and until at least spring or summer of 2023, Judge Tipton’s order serves to vacate the Mayorkas Memo nationwide.

While the Mayorkas Memo is not in effect and cannot be relied on in any requests for prosecutorial discretion, it is important to know that ICE’s authority to exercise prosecutorial discretion is longstanding, well-recognized, and was not created by the Mayorkas Memo.  We therefore expect that ICE will continue to entertain requests for prosecutorial discretion on a case-by-case basis—without reliance on the categories enumerated in the Mayorkas Memo.

Joseph & Hall will continue making the case for prosecutorial discretion on behalf of our clients where appropriate, including seeking agreements to continuances, stipulations to bond, joint motions to the immigration court, stipulations to relief, and agreements to dismiss cases pursuant to 8 C.F.R. § 1239.2(c).

If you would like to schedule a consultation on whether a request for prosecutorial discretion could be advantageous in your immigration case or the case of a loved one, please contact our office at 303-297-9171.