April 3, 2022

The Office of the Principal Legal Advisor (OPLA) serves as the exclusive representative of the Department of Homeland Security (DHS) in immigration removal proceedings before the Executive Office for Immigration Review, litigating all removal cases including those against criminal noncitizens, terrorists, and human rights abusers. Below is an important memorandum released by the U.S. Immigration and Customs Enforcement (ICE) titled “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion.” from Kerry Doyle, Principal Legal Advisor.

The memorandum supplements the Mayorkas Memorandum, which outlined three priorities for civil immigration enforcement: threats to (1) national security, (2) public safety, and (3) border security. This memorandum addresses prosecutorial discretion and provides guidelines for discretion consistent with the civil immigration enforcement priorities. For the first consideration, threat to national security focuses on terrorism and espionage as well as human rights violations. For the second consideration, this memorandum includes aggravating and mitigating factors when assessing the totality of facts and circumstances. The final consideration applies to those entering unlawfully after November 1, 2020. The memorandum then distinguishes between priority and nonpriority cases, providing an overview for the various tools available to OPLA prosecutors. These tools include: notices to appear, dismissal of proceedings, administrative closure, stipulations to issues and relief, continuances, appeals, and joining motions to reopen.

Currently, the public memorandum contains a number of broken links. To facilitate use of the memorandum, we have been able to locate a number of the publications and make them accessible:

• Revoked or Rescinded Policies (provided for archival and historical purposes)
  • Footnote 3: REVOKED- John Trasvina Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities (May 27, 2021)
  • Footnote 1: REVOKED- Tae Johnson, Immigration and Customs Enforcement (ICE) Interim Guidance: Civil Immigration Enforcement and Removal Priorities (February 18, 2021)
• In Effect
  • Footnote 1: Mayorkas Memorandum: Guidelines for the Enforcement of Civil Immigration Law (September 30, 2021)
  • Footnote 4: OPLA’s recently issued Strategic Plan for 2022 – 2026 specifically includes as our second overarching strategic goal, the “Complet[ion of] Litigation Activities Efficiently and in the Pursuit of Justice.”
  • Footnote 18: DHS, Fiscal Year 2023 Congressional Justification, DHS ICE Budget Overview, at ICE-O&S-36 (page 36)
  • Footnote 25: EOIR Director’s Memorandum 22-03: Administrative Closure, at 3 (Nov. 22, 2021) (“Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed.”
  • Footnote 31: Tae D. Johnson, Acting Director, ICE, REMINDER: Detention Policy Where an Immigration Judge has Granted Asylum, Withholding of Removal, or Convention Against Torture Protection, and DHS has Appealed (June 7, 2021)) (citing ICE Directive 16004.1: Detention Policy Where an Immigration Judge has Granted Asylum and ICE has Appealed (Feb. 9, 2004)).
• Unable to Locate
  • Footnote 1: OPLA personnel were advised via an internal email broadcast message to apply the Mayorkas Memorandum priorities to their litigation activities.
  • Footnote 2: Memorandum from Jonathan E. Meyer, General Counsel, DHS, Exercising Prosecutorial Discretion in the Enforcement of Civil Immigration Law (Apr. 3, 2022)
  • Footnote 15: PLAnet guidance on priority classifications and the exercise of prosecutorial discretion under this memorandum is available here
  • Footnote 31: Detention Policy Where an Immigration Judge has Granted Asylum, Withholding of Removal, or Convention Against Torture Protection, and DHS has Appealed (June 7, 2021)
  • Footnote 32: Consistent with prior guidance provided to OPLA field managers on July 30, 2021, DOJ’s Office of Immigration Litigation (OIL) will continue to assess whether cases at the petition for review (PFR) stage of appellate litigation are DHS enforcement priorities.

Please do not hesitate to contact NIWAP with any technical assistance questions. (202) 274-4457 and info@niwap.org