Prosecutorial Discretion
What it means:
Why is this necessary?
U.S. Immigration and Customs Enforcement (ICE) has issued a long-awaited memorandum that will help ICE attorneys apply prosecutorial discretion in immigration court.
The primary goal of this memorandum, written by ICE General Counsel Kerry Doyle, is to ensure that ICE's limited resources are used efficiently and fair results are achieved. By encouraging prosecutors to terminate low-priority cases in immigration court, ICE hopes to reduce the huge and still growing backlog of cases they have in immigration court.
The Doyle Memorandum expands and explains the prosecution priorities outlined by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas in an initial memo dated September 30, 2021. The memorandum describes how these priorities should be applied by ICE attorneys in immigration court.
According to the Doyle memorandum, ICE attorneys were provided with guidance and tools for prosecutorial discretion regarding individuals they believe are not a priority for prosecution. While the memorandum addresses various types of prosecutorial discretion, two forms are emphasized:
It is not surprising that ICE favors these two approaches because, as of January 2022, there is a backlog of more than 1.5 million cases in immigration court.
However, the Doyle Memorandum has its limitations. It continues to link the criminal legal system to the immigration system, reinforcing a prison-to-deportation pipeline that disproportionately affects immigrants of color. This leaves the primary role in the hands of ICE line prosecutors without sufficient oversight.
Nevertheless, Doyle's memorandum importantly reminds ICE prosecutors that they can and should shy away from cases and exercise their prosecutorial discretion differently in order to conserve resources, reduce the backlog of prosecutions, and ensure fairness. As the memorandum states, "the government wins when justice prevails."
- The prosecutor (or even the judge) stops the deportation proceedings
- You do not receive official status, but you are issued case closure papers
- To apply for asylum, you must resubmit Form I-589 to USCIS and await an interview appointment
Why is this necessary?
U.S. Immigration and Customs Enforcement (ICE) has issued a long-awaited memorandum that will help ICE attorneys apply prosecutorial discretion in immigration court.
The primary goal of this memorandum, written by ICE General Counsel Kerry Doyle, is to ensure that ICE's limited resources are used efficiently and fair results are achieved. By encouraging prosecutors to terminate low-priority cases in immigration court, ICE hopes to reduce the huge and still growing backlog of cases they have in immigration court.
The Doyle Memorandum expands and explains the prosecution priorities outlined by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas in an initial memo dated September 30, 2021. The memorandum describes how these priorities should be applied by ICE attorneys in immigration court.
According to the Doyle memorandum, ICE attorneys were provided with guidance and tools for prosecutorial discretion regarding individuals they believe are not a priority for prosecution. While the memorandum addresses various types of prosecutorial discretion, two forms are emphasized:
- For cases that are not yet in immigration court, ICE prosecutors have discretion to decide not to take the case to deportation proceedings.
- For cases already in immigration court, ICE prosecutors can file a motion to dismiss the case, even if the individual himself or herself does not wish to dismiss his or her case.
It is not surprising that ICE favors these two approaches because, as of January 2022, there is a backlog of more than 1.5 million cases in immigration court.
However, the Doyle Memorandum has its limitations. It continues to link the criminal legal system to the immigration system, reinforcing a prison-to-deportation pipeline that disproportionately affects immigrants of color. This leaves the primary role in the hands of ICE line prosecutors without sufficient oversight.
Nevertheless, Doyle's memorandum importantly reminds ICE prosecutors that they can and should shy away from cases and exercise their prosecutorial discretion differently in order to conserve resources, reduce the backlog of prosecutions, and ensure fairness. As the memorandum states, "the government wins when justice prevails."