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.


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