U.S. Immigration Customs Enforcement (ICE) Prosecutorial Discretion Memo (December 19, 2022)

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:

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