Update Regarding Ongoing ICE Priorities Litigation (September 2021)

Background

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.

Suggestions

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.

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