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Unenforceable: Discretion in the Immigration System

Henry Holt

Edited by Hiba Soban, Jia Lin, and Vedanth Ramabhadran


On June 10th, 2022, a federal district court in Texas suspended the Biden Administration's immigration enforcement priorities, the policy dictating who the administration decides to deport. The Biden Administration’s policy was specifically tailored to eliminate bureaucratic backlogs by narrowing the criteria of deportation. Consequently, the Court recognized that the Biden Administration's narrow policy cost the state money by not detaining all noncitizens eligible for removal, siding with the plaintiffs, Texas and Louisiana. Although the Biden Administration appealed the decision to the Fifth Circuit Court of Appeals, both the Fifth Circuit and the U.S. Supreme Court rejected the administration's request to maintain the priorities during deliberations [1]. Consequently, the enforcement priorities were canceled, and Biden's solution to the immigration court backlog was postponed.

Biden's policy specifically affects noncitizens who do not have a pending available option for relief. This includes undocumented immigrants, denied asylum seekers or those with other denied relief petitions, and any noncitizen undergoing removal proceedings. These categories constitute immigrants eligible for removal under current congressional law, although an immigration judge would first need to rule in favor of removal. The priorities designate which groups of immigrants executive enforcement agencies will target first for apprehension or removal proceedings. Fundamentally, these objectives target immigrants facing deportation and direct agency resources toward more important cases.

Then what was so restrictive about these priorities? How were agency resources so misguided that the courts decided to vacate the priorities? The Mayorkas Memorandum, released on September 30th, 2021, established that noncitizens would only be a priority for removal from the country if they were found to threaten national security, border security, or public safety. These three priorities resemble past department initiatives, namely Obama's enforcement priorities [2]. In short, a noncitizen threatens national security if they are "engaged in or suspected of terrorism or espionage" [3]. Similarly, ICE considers them a threat to border security if they were "apprehended at a border…while attempting to unlawfully enter the U.S." or they were apprehended in the U.S. after unlawfully entering after November 1st, 2020 [3]. Finally, if a noncitizen poses a current threat to public safety, because of "serious criminal conduct," they are a priority for apprehension and removal [3]. The memo also contains a non-exhaustive list of aggravating and mitigating factors for priority designation but stresses that discretionary authority should be used to accomplish their mission "most effectively and justly" [3]. 

The Mayorkas Memorandum was handed down by Alejandro N. Mayorkas, the Secretary of Homeland Security as of February 2021, to the Department of Homeland Security (DHS), which handles the majority of immigration-related action. Included within DHS resides the U.S. Immigration and Customs Enforcement Agency (ICE), created in the wake of 9/11. This agency houses the Office of the Principal Legal Advisor (OPLA), representing ICE in all legal matters, offering legal advice about internal policies, and prosecuting noncitizens in all immigration matters [4].

Separate from the DHS is the Executive Office for Immigration Review (EOIR), an agency under the Department of Justice that administers the immigration court system and makes the ultimate decision in removal cases. Although EOIR acts as a judicial system, it is crucially still a part of the executive branch and is not a function of the federal judicial branch. Regardless, EOIR courtrooms resemble traditional courtrooms; immigrants are the defendants, often represented by immigration law practitioners, OPLA attorneys are the prosecution, and EOIR judges decide the outcome. There is no jury. 

On April 3rd, 2022, all OPLA attorneys received the Doyle Memorandum, handed down by Kerry E. Doyle, the Principal Legal Advisor or head of OPLA. The Doyle Memorandum explained and extended OPLA's role in actuating the Mayorkas Memorandum. It reaffirms the three enforcement priorities and offers more specific guidance for OPLA attorneys in "construing" the three priorities [5]. Moreover, the Doyle Memorandum enumerates how the Biden Administration intends to prioritize removal cases, alleviate the immigration court backlog, and conserve agency resources [5]. Specifically, Doyle provides guidance on the use of prosecutorial discretion (P.D.) during removal proceedings. 

Prosecutorial discretion represents a specific form of executive discretionary power—the power to decide when to pursue a particular legal action—in which OPLA attorneys may determine whether or not to prosecute a specific immigration case [1]. If the prosecution decides to pursue P.D., several options exist, including dismissal of removal proceedings, administrative closure, and non-filing of a Notice to Appear (NTA). In short, administrative closure indefinitely suspends immigration proceedings but does not remove the case from EOIR jurisdiction. Non-filing of an NTA means DHS declines to serve an immigrant with an NTA, and thus, EOIR files the case as a "failure to prosecute" [6]. Finally, under dismissal of proceedings, the noncitizens' case is completely removed from EOIR jurisdiction, and they are no longer subject to removal proceedings. While the previous two methods may allow ICE or EOIR to reopen or refile proceedings, dismissal requires action from another immigration agency, such as denial of another relief petition or a second apprehension to return to removal proceedings. Accordingly, under the Doyle Memo, dismissal of proceedings is OPLA's "preferred" method of P.D., and other forms are incredibly rare, requiring specific extenuating circumstances [5].

Under the Doyle Memo, P.D. is exceedingly easy to qualify for. Barring certain factors, such as a criminal conviction or encounter with Customs and Border Patrol, most cases are eligible for P.D. Even then, practitioners may be able to sufficiently convince ICE that their client no longer constitutes a "current threat" and thus should be eligible for a non-priority designation and dismissal of proceedings [3]. For example, in a template cover letter to OPLA from John W. Lawit, LLC, an Immigration Law Firm, the limited standards of Biden's policy become clear:

"Respondents have access to immigration relief that may make removal unnecessary and wasteful of limited government resources…Respondents have no criminal background. Respondents have never been suspected of terrorism or other related activities that may pose a threat to national security or public safety. Respondents have never engaged in persecution or human rights abuse. Respondents have no immigration violations." [7].

In this sense, P.D. has been incredibly successful at alleviating the EOIR case backlog and redirecting ICE resources. Biden's enforcement priorities have also not contributed to a decrease in deportations, although most removals are from apprehensions at points of entry, not interior removals [8]. However, these limited standards provoked the states of Texas and Louisiana to challenge the Mayorkas Memo in a Texas federal court.

Arguing that by not detaining or removing "all noncitizens against whom Congress authorized detention or removal" the states suffered monetary injury, the states sought to vacate or terminate the Mayorkas Memo [1]. Judge Drew B. Tipton, on June 10th, 2022, agreed with the State parties and barred the Biden Administration from continuing with these enforcement priorities. In his decision, Judge Tipton declared that the principal issue of the case is that "the government has instructed federal officials that 'shall detain' certain aliens means 'may detain' when it unambiguously means must detain" [9]. Here, Tipton refers to two pieces of immigration legislation: the 1990 Immigration Act and the 1996 Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA, pronounced like a record scratch), which created new standards for illegal immigration and the government's responsibility to detain and remove immigration violators. The states, and Tipton, claimed that the executive branch had misinterpreted their discretionary authority under these laws and consequently broadened their authority beyond an acceptable interpretation under the law. Reasonably, Tipton added, "the Executive Branch may not instruct its officers to enforce a statute in a manner contrary to the law itself" [9].

Beyond arguing the merits of their challenge, the states also needed to establish standing to challenge the priorities in the first place. Simply put, “standing” is a party's capability or eligibility to bring suit in Court. There are three standard requirements to satisfy standing under Article III of the Constitution—injury, traceability, and redressability. The former, injury, involves any harm suffered by a party due to some act or omission by the accused. The latter, redressability, pertains to the ability of the Court to correct the injury—in this case, vacating the Memos. Traceability refers to a "fairly traceable link" between the injury and the alleged unlawful action [9].

In this case, the states accuse the government of failing to enforce certain immigration statutes and causing injury to the states' financial and patriae interests [9]. Parens patriae refers to the government's duty to protect its citizens from harm. In other words, because the states will likely have to detain more illegal immigrants due to federal inaction (and because non-detained immigrants may commit violent crimes), the federal government has sufficiently injured the state's "quasi-sovereignty," or its separate interest towards its own residents [9]. Compelled by these arguments, Judge Tipton resolved to suspend the Mayorkas and Doyle Memorandums pending further review.

Naturally, the Biden Administration appealed to the Fifth Circuit Court of Appeals, the next tier of jurisdiction that reviews district court decisions. However, due to the urgency of enforcement guidance, the Supreme Court "issued an expedited briefing schedule, bypassing the usual procedure" where the Court would wait for the Fifth Circuit to issue a decision [1]. Despite the rapid process, the Court issued a decision on June 23rd, 2023, over a year after the district court decision, holding that the states lacked standing, reversing the district court's judgment and reinstating the Mayorkas and Doyle Memorandums.

In an 8-1 decision, Justice Kavanaugh, writing for the majority, declared that the Executive's expansive and long-standing discretionary powers "rendered the states' injuries not cognizable" [10]. Here, “cognizable” refers to “within the jurisdiction of the courts.” Essentially, because of a long precedent of executive prosecutorial discretionary power—not specifically related to immigration discretion—found within Article II of the Constitution, the Justice argued that the lower Court did not have the power to vacate the memo, i.e., the courts could not redress the injury. 

Only Justice Alito dissented and argued that the specific statutes "left the Executive with no discretion to refrain from arresting and detaining covered aliens" [11]. Alito makes the claim that it is not within the Executive's power to simply not enforce specific laws. He claims that because two statutes of IIRIRA—the 90s-era legislation—mandate the removal of any alien deemed "inadmissible or deportable," and because the Memos advise against removal for many immigrants that would otherwise be deportable, the Memos unconstitutionally decline to enforce the two statutes [11]. Alito claims that since the statutes use the word "shall," meaning “must,” the Executive does not have the discretion to decline the enforcement of these removals [11].

When asked what limits exist on the Executive's power of non-enforcement, the opposing counsel, the U.S. government, found that "the only limit…is Congress's power to employ the weapons of inter-branch warfare" [11]. These "weapons" include withholding funds, impeachment, and denying appointments; there are no methods to actually force enforcement. In essence, the president can decline enforcement of any statute they see fit without a check from Congress. Furthermore, since this power of discretion is not cognizable by the judicial system, the Executive has carte blanche to decline enforcement.

However, this unabashed use of discretion is constitutionally rooted and sound. John Locke, upon whose writing much of the Constitution is drawn, introduced the idea of the "prerogative," or the power of the Executive to act contrary to the law to benefit the public good. He calls this discretionary capability "nothing but the power of doing public good without a rule" [12]. Citing Article II, courts have long upheld this discretionary power as a natural part of our federal system. In this sense, the Biden Administration, as well as the four previous administrations that have also exercised this discretion after IIRIRA, is well within its rights under Article II to prioritize enforcement. 

It is impossible, however, for the Executive to enforce IIRIRA fully. Over 11 million undocumented immigrants reside in the country currently. The Executive only has the capacity, due to resource deficiency, to remove 400,000 persons each year. Currently, as the southern border experiences record high levels of both legal and illegal entry, most of that capacity is dedicated to removing recent arrivals. It is not possible for the Executive to fulfill the mandate of IIRIRA without further apportionment of funds by Congress.

For this reason, previous president's discretionary programs have also withstood legal challenges. Former President Obama's Deferred Action for Childhood Arrivals (DACA) program relies on a form of discretion called "deferred action" [13]. Under deferred action, the government refrains from prosecution, allowing recipients to continue living within the U.S. and obtain employment authorization. Although attempts to expand DACA have routinely been blocked by courts, such as in Texas v. United States, the original program has withstood every challenge, most recently a 2023 Supreme Court case [14].

The issue with DACA and Biden's P.D., however, resides in the fact that they are both merely discretionary programs. Due to the limits of discretionary power, neither can offer affirmative relief or, in other words, a pathway to permanent residency and citizenship. DACA and Biden's P.D. represent necessary programs to conserve ICE and other agencies' resources or reduce the immigration court backlog. Still, they cannot offer recipients anything more than a "state of limbo" where they may continue to live and work within the U.S. but never achieve the security of permanent residency. 

Most immigrants who receive P.D. end up refiling previously-denied relief petitions with USCIS, knowing that since they have no more evidence than their previous petition attempt, they will assuredly be rejected. This is because, although dismissal of proceedings is generally positive, once they no longer have a pending case, they no longer qualify for an employment authorization document (EAD) allowing them to work in the U.S. Upon filing with USCIS, they must suffer the "180-day asylum work authorization clock" that bars them from qualifying for an EAD for 6 months. In the event applicants do not need access to an EAD, they may opt out of  refiling and simply exist without any pending applications or cases. The P.D. recipients will likely join the DACA recipients as a class of immigrants perpetually without guidance, awaiting an avenue to lasting relief.

The cause of the court backlog, high undocumented population counts, and the reason for the necessity for discretion in the first place is chronic inaction by Congress. The U.S. has yet to have a comprehensive immigration policy. The most recent effort at reform, IIRIRA, failed to provide a pathway to citizenship for a striking majority of immigrants. Asylum or refugee status, often the only option available, is notoriously stringent and narrow, leading to millions of denied applications, incredibly long wait times, and limited relief for most immigrants.

While the discretionary power exercised in immigration policy expands far beyond traditional concepts of discretion as a rare, circumstantial power, it is the only tool standing in the way of a complete breakdown of EOIR and ICE. To ameliorate the current crisis, Congress must pass a new law either offering a path to citizenship or granting ICE immeasurable resources to enforce IIRIRA fully. It is simply not feasible to curtail discretionary power politically, nor is it correct legally. Prosecutorial discretion may be limited, impermanent, and weak, but it is vital within a system so immeasurably damaged.

 

[1] Practice Advisory: Advocating for Prosecutorial Discretion Under the Biden Administration’s Prosecutorial Discretion Guidance, National Immigration Project, (09/15/2023), https://nipnlg.org/sites/default/files/2023-09/2023_Sept-PD-advisory.pdf

[2] Comparing Trump and Obama’s Deportation Priorities, Bipartisan Policy Center, https://bipartisanpolicy.org/blog/comparing-trump-and-obamas-deportation-priorities/ 

[3] Guidelines for the Enforcement of Civil Immigration Law, U.S. Immigration and Customs Enforcement, (09/30/21), https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf 

[4] Office of the Principal Legal Advisor Main Page, U.S. Immigration and Customs Enforcement, https://www.ice.gov/about-ice/opla 

[5] Guidance to OPLA attorneys regarding the enforcement of  Civil Immigration Laws and the Exercise of Prosecutorial Discretion, U.S. Immigration and Customs Enforcement, (04/03/2022), https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_guidanceApr2022.pdf 

[6] ILRC Attorneys, THE NOTICE TO APPEAR (NTA), (2020), https://www.ilrc.org/sites/default/files/resources/nta_practice_advisory.pdf.

[7] Lawit, John. JWL Template for PD Request to ICE OPLA Cover Letter, John W. Lawit, LLC., (07/07/22), https://docs.google.com/document/d/12qCFcnCqBJX4HqqXha1DlvrPybQQDIjr/edit

[8] Maria Sacchetti, Deportations of Migrants Rise to More than 142,000 under Biden, Washington Post, (12/30/2023), https://www.washingtonpost.com/immigration/2023/12/29/immigrants-ice-border-deportations-2023/ 

[9] State of Texas et al v. United States of America et al, e 6:21-cv-00016 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS, (08/19/21), https://www.texasattorneygeneral.gov/sites/default/files/images/executive-management/2021/20210819_Memo%20Opinion%20and%20Orde%20Granting%20PI%20Mtn.pdf 

[10] United States v. Texas, Explained, Default, (07/14/2023), https://www.lawfaremedia.org/article/united-states-v.-texas-explained 

[11] 22-58 United States v. Texas, Supreme Court of the United States, (06/23/2023) (2022), https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf.

[12] Carl J. Schneider & Thomas P. Peardon, John Locke, Second Treatise of Government, 6 The Western Political Quarterly 390 (1953), https://www.jstor.org/stable/442193?origin=crossref 

[14] DACA, National Immigration Law Center, (Last Updated: 09/13/2023), https://www.nilc.org/issues/daca/ 

[15] Doyle Memorandum: Frequently Asked Questions and Additional Instructions, U.S. Immigration and Customs Enforcement, (Last Updated: 12/21/2023), https://www.ice.gov/about-ice/opla/prosecutorial-discretion 

[16] Featured Issue: Prosecutorial Discretion, AILA, (08/28/23), https://www.aila.org/library/featured-issue-prosecutorial-discretion  

[17] Lawit, John. Template Joint Motion to Dismiss for PD, John W. Lawit, LLC, (2024?), https://docs.google.com/document/d/1i2_6WtpC2Q17hKU3-TG2SAVY_akuONLS/edit 

[18] UNDERSTANDING PROSECUTORIAL DISCRETION IN IMMIGRATION LAW, Immigration Policy Center, American Immigration Council, (09/2011), https://www.americanimmigrationcouncil.org/sites/default/files/research/IPC_Prosecutorial_Discretion_090911_FINAL.pdf 


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