Prosecutorial Discretion On Hold

October 1, 2022 § Leave a comment

On June 30th, 2022, a district court in Texas vacated Secretary Mayorkas’s memorandum instituting guidance on utilizing prosecutorial discretion in enforcing migration and detention policies against noncitizens. Mayorkas’s memorandum, issued in September of 2021, required the Department of Homeland Security (“DHS”) to determine enforcement by considering the totality of the circumstances surrounding each individual migrant. The guidance also protected against enforcement based on migrants’ gender, religion, race, and other First Amendment rights, ensuring that all migrant’s civil liberties and rights were protected and not used in determining whether or not to enforce policies. The memo’s guidance aimed both to recognize that many noncitizens have made positive impacts in the United States and to focus enforcement and resources on noncitizens who threaten the safety of the country. Many noncitizens have been in the United States for years and have positively impacted the economy, culture, and communities. Instead of enforcing policies against these noncitizens, the guidance asks DHS officials to focus on noncitizens who may threaten border, public and national security.

            Under nine months after Mayorkas issued this guidance, a District Court in the Southern District of Texas vacated the memorandum, ruling that the guidance was contrary to two provisions of the Immigration of Nationality Act (“INA”) as well as the Administrative Procedure Act. Specifically, the guidance violated INA § 236(c) which mandates the detention of inadmissible noncitizens who have committed certain crimes or terrorist activities, as well as INA § 241(a)(2) which requires the detention of noncitizens who have received final orders of removal. The question of whether the guidance does in fact violate sections of the INA has made its way to the Supreme Court. Until the Supreme Court releases its decision, likely not until next yet, the stay will remain and the memo has no effect.

            The continued stay of the memo’s guidance, likely through at least the end of the year, creates concerns over how the DHS can and will implement its discretion. Due to the stay, there is no longer clear guidance for how ICE officers should use resources and enforce policies. There will likely be inconsistencies throughout the country regarding the enforcement of policies, and it may be more difficult to hold agents accountable for mistakes. Additionally, many individuals worry that ICE will arrest more individuals as a corollary to activities that are not related. While the lack of official guidance will likely affect how and if ICE agents consider certain factors when enforcing policy, ICE agents are still constrained by their budget and will need to determine how to effectively utilize their resources while they wait for a Supreme Court decision.


The Call for an Independent Immigration Court

July 30, 2022 § Leave a comment

Over the past several years, immigration experts have increasingly called for robust immigration court reform. Unlike other judicial bodies in the United States, immigration courts lack independence from the Executive Branch and therefore lack the impartiality that the United States court system prides itself upon.

Immigration courts in the United States are managed by the Executive Office for Immigration Review (EOIR), a sub-agency of the U.S. Department of Justice (DOJ). Immigration court decisions are thus often affected by a highly politicized agenda depending on the given presidential administration. For example, immigration judges were pressured to make quick decisions on life-or-death cases under the Trump administration and were judged on how well they met particular quotas. This outside pressure forced judges to deviate from their proper and impartial duties of fairly adjudicating cases and affording due process in every case, regardless of the time it takes or whether certain quotas are met. The political influence on immigration courts is further evidenced by asylum denial rates, which were significantly higher under than Trump administration than during the Obama administration due to the conservative court-packing under the Trump administration.

As recently as February 2022, lawmakers introduced a bill known as the Real Courts, Rule of Law Act of 2022 (H.R. 6577). On May 11, 2022, the House Judiciary Committee voted 24-12 to advance this bill, which would remove immigration courts from the U.S. Department of Justice and make them independent of the executive branch under Article I of the U.S. Constitution. Proponents of this bill argue it would ensure more fair and efficient outcomes for immigrants and help depoliticize court procedures. As of May 2022, the establishment of an immigration court under Article I of the Constitution has been endorsed by two bipartisan commissions and more than 120 legal organizations.

This bill now awaits a vote by the democrat-controlled House of Representatives, where it is likely to pass along party lines. However, the bill would face an uphill battle in the Senate if it were to be put up for a vote since the bill would need to garner 60 votes in the affirmative due to the Senate filibuster rule.

To track the status of this bill, you can visit this website.

The Build Back Better Act

January 27, 2022 § Leave a comment

What is the Build Back Better Act?

The Build Back Better Act was introduced in the House of Representatives on September 27th, 2021. The Act was modeled off of President Joe Biden’s Build Back Better Plan, a legislative framework that Biden proposed ahead of his inauguration. The plan covered a wide range of issues including funding for COVID-19 relief, social services, welfare, and infrastructure. The plan also addressed issues pertaining to climate change and immigration. The Act was included in a $3.5 trillion reconciliation package, alongside the Infrastructure Investment and Jobs Act which was later voted on and passed in the Senate separate from the Build Back Better Act.

Legislative History

After intense negotiations in the House of Representatives, the Act passed 220–213 on November 19, 2021. However, the Act was passed after the original $3.5 trillion was negotiated down to $2.2 trillion. The Act then made its way to the Senate for revisions. Just as in the House, several of the original provisions in the Act were gutted. For example, the Senate parliamentarian rejected Democrats’ attempts to include immigration in this “economic” bill three times between November and December of 2021. After weeks of negotiations and a glimmer of hope that the Act might be passed before the New Year, Democratic Senator Joe Manchin from West Virginia publicly pulled his support from the bill for not matching his envisioned cost of about $1.75 trillion. Manchin’s refusal to support the Act effectively killed the bill as it needed all 50 Democratic senators to pass via reconciliation.

Breakdown of the Immigration Provisions in the House Bill

The House Judiciary Committee included the following immigration provisions in the original bill text that was to be included in the budget reconciliation package:

  • Lawful Permanent Residence for Certain Entrants:
    • Documented and undocumented individuals may apply for adjustment of status.
    • Contingent upon a $1500 fee, a background check, and a medical examination.
    • Eligible groups          
      • Dreamers
        • Continuously physically present since 1/1/21
      • Essential Workers
        • Continuously physically present since 1/1/21
        • Consistent record of earned income in the U.S. in an essential occupation as defined by the DHS CISA guidance between 1/31/2020 – 8/24/21
      • Holders of Temporary Protected Status (TPS)
        • Continuously physically present for 3 or more years
        • Last habitually resided in a state that was designated for TPS on 1/1/17
      • Recipients of Deferred Enforcement Departure (DED)
        • Continuously physically present for 3 or more years
    • Several inadmissibility grounds apply.
    • Effective Date: 180 days after enactment or May 1, 2022, whichever is earlier.
  • Recapture of Unused Immigrant Visa Numbers:
    • Recaptures unused Employment Based (EB) and Family Based (FB) visas since FY 1992.
    • Preserves Diversity Visas (DV) for individuals (and their spouse and children) that were not issued or used for admission since FY 2017 due to the Muslim/African bans and COVID processing delays/bans.
    • Revises INA to ensure that visas do not go lost in the future.
    • Avoids double counting of visas.
  • Adjustment of Status:
    • Allows for filing of an AOS application for most FB and EB applicants upon the approval of the immigrant visa (IV) petition
      • Does not require a visa number to be immediately available
      • Fee of $1,500 for principal applicant, $250 for each derivative beneficiary
    • Thru September 30, 2031, creates an exemption from the annual and per-country FB and EB immigrant visa numerical limitations for individuals who have filed AOS applications, and their priority date is at least 2 years before the date of applying for a waiver of limitations, for a supplemental fee
    • Effective Date: Takes effect 180 days after enactment or May 1, 2022, whichever is earlier.
  • Additional Supplemental Fees:
    • Establishes additional supplemental fees for immigrant visa petitions (in addition to filing fees, early adjustment fees, and waiver of numerical limitation fees)
      • $100 for FB IV petitions for unmarried sons and daughters of USC, married sons and daughters of USCs, and brothers and sisters of USC and immediate relatives.
      • $100 for FB IV petition for spouses and unmarried children of LPRS.
      • $800 for EB 1-3 petitions. o $15,000 for EB-5 petitions.
  • U.S. Citizenship and Immigration Services
    • Appropriates an additional $2.8 billion to USCIS to efficiently adjudicate INA 245(n) applications.


While the fate of the Build Back Better Act appears to be rather grim, there is still hope that some of these immigration provisions can be passed in smaller components or achieved through other procedural mechanisms in the House and Senate. Some Senators are calling to disregard the rulings of the Senate parliamentarian, while others continue to pick up the broken pieces and brainstorm ways in which they can achieve more narrow wins on immigration reform. President Biden, too, continues to vocalize his support for these aforementioned immigration measures and calls for continued negotiation. It is likely that these provisions will serve as a framework for a future immigration reform bill—perhaps a revamped, Build Back Better 2.0.

Update Regarding Ongoing ICE Priorities Litigation (September 2021)

September 7, 2021 § Leave a comment


Between January and June 2021, three memos were issued: the Pekoske Memo (01/20/2021), the Johnson Memo (02/18/2021), and the Maher Memo (05/27/2021). These memos set interim guidelines for immigration enforcement, including providing guidance to ICE ERO officers on prioritizing enforcement actions, custody decisions, the execution of final orders of removal, and other actions.

On May 27, 2021 the Office of the Principal Legal Advisor (OPLA) issued the Trasvina Memo, directing all OPLA attorneys to exercise prosecutorial discretion at all stages of the enforcement process. Prosecutorial discretion would consist of a range of actions including administrative closure, whether to issue a Notice to Appear (NTA), cancellation of a NTA, stipulation to relief, termination, and continuances.

On August 19, 2021 U.S. District Judge Drew Tipton issued a preliminary injunction prohibiting the implementation of the Pekoske and Johnson Memos nationwide. On August 23, 2021, the court granted a stay on the preliminary injunction for a week. On August 25, 2021, the Fifth Circuit Court of Appeals extended the district court stay on the preliminary injunction until further notice from the court.

Within a day of the preliminary injunction, OPLA announced that it was suspending its reliance on the Trasvina Memo. However, the notice directed noncitizens and their legal representatives to contact local OPLA offices regarding the exercise of prosecutorial discretion in individual cases. It was reported that some ICE offices were still willing to consider traditional prosecutorial discretion requests based on ICE’s longstanding, general authority to exercise its discretion in individual cases.

Following the August 23 stay, OPLA’s website restored most of the information on prosecutorial discretion. OPLA’s website removed references to the memos cited in the injunction and instead referred to its “longstanding authority” to engage in prosecutorial discretion.


  1. Continue Requesting Discretion Based on Longstanding ICE Authority. ICE ERO and OPLA had authority to exercise prosecutorial discretion prior to the memos mentioned above. Therefore, practitioners should continue to advocate for the exercise of discretion in clients’ cases. Requests should not make explicit reference to the memos cited in the injunction.
  2. Pursue Relief Directly with the Court: Practitioners should still pursue relief directly with the court. The court has the authority to administratively close cases without OPLA agreement. Practitioners should request closure pursuant to Matter of Avetisyan (BIA 2012), Matter of W-Y-U- (BIA 2017), and Matter of Cruz-Valdez (A.G. 2021).
  3. Submit Requests to Court Even When ICE Has Not Responded: Prior to the August 19 injunction, practitioners were already reporting that OPLA offices were slow to respond to PD requests. Therefore, it may be a good strategy in some cases to continue to submit PD requests to OPLA prior to submitting a request to the Court in which you advise that a request was made to OPLA but no response was received.
  4. How to Submit Requests to ICE: Practitioners should verify where to submit requests, possibly using previously established duty-attorney email boxes, eservice, or the emails noted on OPLA’s restored webpage. See AILA’s Practice Alert: Local OPLA Guidance on Prosecutorial Discretion for instructions provided by OPLA offices prior to the injunction.

Legislation Watch

August 1, 2021 § Leave a comment

While immigration remains a divisive topic among Americans, one thing is for certain: year after year, and poll after poll, Americans overwhelmingly support a path to citizenship for unauthorized immigrants. This bipartisan support is evident in a recent poll by Quinnipiac University in February 3, 2021 in which two-thirds of Americans favored allowing all unauthorized immigrants to obtain legal status and apply for citizenship. In that same poll, there was even more support for Dreamers and agricultural workers receiving citizenship.

Despite this widespread support among Americans, Congress has made little progress in its efforts of codifying a legal pathway to citizenship for unauthorized immigrants. Currently, there are a handful of major pieces of legislation sitting idle in Congress that would offer extensive immigration reform and provide a comprehensive pathway to citizenship for unauthorized immigrants who work hard, contribute to our country’s prosperity, and often know of no other home. And while these legislative solutions remain in limbo, current patchwork solutions, such as the Deferred Action for Childhood Arrivals (DACA), continue to be dismantled and invalidated in the U.S. Judiciary system. It is for this exact reason that Congress must move forward in passing these reform bills that Americans overwhelmingly support.

Here is a current list of pending immigration legislation in Congress:

The Dream Act of 2021 (S.264), and The American Dream and Promise Act of 2021 (H.R.6)

Both of these Acts would provide a permanent solution and a path to citizenship for Dreamers whose fate remains unclear due to ongoing litigation. H.R.6 would also provide a path to citizenship to beneficiaries of two humanitarian programs: Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). H.R.6 would also repeal the 1996 law which penalizes states that grant in-state tuition to undocumented students on the basis of residency and would allow Dreamers to access federal financial aid. Lastly, H.R.6 would allow eligible Dreamers deported under the Trump administration to apply for relief from outside the country. H.R.6 passed in the House of Representatives with bipartisan support, and S.264 was introduced in the Senate in February 2021 where it has yet to see a vote.

The Farm Workforce Modernization Act, FWMA, (H.R.1603)

The FWMA would offer a pathway to citizenship for undocumented agricultural workers, revise the H-2A agricultural worker program and impose mandatory employment verification through the E-Verify program in agriculture. These improvements would stabilize the farm labor force and ensure greater food safety and security for the country. This Act passed in the House of Representatives with bipartisan support and awaits a vote in the Senate.

The U.S. Citizenship Act of 2021 (H.R.1177)

The U.S. Citizenship Act of 2021 hews closely to the outline that Biden sent to Congress on his first day in office. The proposal includes an eight-year path to citizenship for most of the estimated 11 million immigrants living illegally in the U.S., bolsters the nation’s refugee and asylum systems, reforms the immigrant visa system, addresses the root causes of migration and responsibly manages the Southern border. This Act was introduced in February, 2021.

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