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.

The HALT Act

July 30, 2011 § Leave a comment

On July 26th, the House Judiciary Subcommittee held a hearing on the “Hinder the Administration’s Legalization Temptation Act” (HALT Act), introduced by House Judiciary Chairman Lamar Smith (R-TX). The proposed bill would suspend discretionary forms of immigration relief until January 21, 2013, the day after the next Presidential inauguration. Lamar Smith and Senator David Vitter are the sponsors of this bill, which will serve as political roadblocks to President Obama and prevent him from implementing humanianrian relief that is currently available to immigrants on an ad hoc basis. The HALT Act is apparently proposed in reaction to a series of policy memos from the Administration that contemplate using executive branch authority to improve current laws so they become more streamlined or beneficial to more individuals. The memos direct Immigration Customs and Enforcement (ICE) to prioritize the removal of dangerous criminals. Criticisms of the memos have included President Obama focusing too much resource on the border and deporting more immigrants per year than any previous administration

If passed, some examples of current relief that would no longer be available to immigrants under the HALT Act would include: no Temporary Protected Status (TPS) for countries suffering disasters such as earthquakes, hurricanes, tsunamis or countries experiencing civil war or other armed conflict; no deferred action to domestic abuse survivors seeking protection under the Violence Againast Women Act (VAWA); an immigration judge would no longer be able to cancel removal of a non-citizen due to “exceptional and extremely unusual” hardship for a qualifying U.S. citizen or lawful permanent resident family member.

Proponents of this bill state that the purpose of it is to prevent President Obama from granting a “mass amnesty”, although the reality is that the policies of the HALT Act are overbroad and misguided. Aside from its political underpining, the Act would further undermine an already unstable immigration system. Given the state of our current system, which is pretty broken, this is not a desirable outcome.

Lots Happening On the Immigration Front This Month

June 28, 2011 § Leave a comment

To start off, gay Pulitzer Prize winning journalist, Jose Antonio Vargas, comes “out” again and this time about his undocumented immigration status. After having lived and worked in the United States for years as a successful journalist, Vargas wanted the world to know that there are people around us who, like him, live in the spotlight and are undocumented. So those of us who hold on to the common perception that the undocumented are the restaurant workers, the nannies or the construction workers, well think again. To read the full story that Vargas authored about his revelation, read on here.

Then, lots of updates this month from the White House. First, the House held a hearing on a long-expected mandatory employment verification bill H.R. 2164 introduced by Rep. Lamar Smith (R-TX); the Refugee Protection Act was introduced in the Senate and House; and Rep. Zoe Lofgren (D-CA) introduced a comprehensive high-skill bill. In addition to the House mandatory employment verification bill, two other immigration-related bills (the Secure Visas Act and the detention bill), all authored by Chairman Smith of the House Judiciary Committee, are up for debate. Being more of the same enforcement-only proposals, these bills will not fix the immigration system but will instead impose additional restrictions on our businesses and serve as mechanisms for the government to grossly expand and mandate the use of detention to encompass large numbers of asylum seekers and other harmless noncitizens. AILA is already on record and will continue to fight the passage of these bills.

Additionally, Dept. of Homeland Security (DHS) and Immigration Customs & Enforcement (ICE) announced a basket of reforms to address concerns about the Secure Communities program as well as an ICE memo on the exercise of prosecutorial discretion at all levels of the agency’s enforcement operations. “These are significant steps ICE has taken to clarify and advance its enforcement agenda. For the first time in a decade, the memo on prosecutorial discretion puts in a single document and in plain English the criteria ICE officers and trial attorneys should consider before initiating or pursuing enforcement actions,” said AILA President Eleanor Pelta. “The memo lists factors such as good behavior, ties to America, and other equities for enforcement officials to consider when deciding what course of action to take in a particular case. The memo helps put into effect DHS’s priorities so that it can better target law enforcement resources at those who would do us harm.” A second memo focused specifically on protecting victims and witnesses of crimes, including domestic violence was also released.

DHS also announced several reforms to address flaws in the Secure Communities program, which has drawn criticism from federal and local officials, law enforcement leaders, and other leading civic and community leaders. Recognizing the gravity of these concerns, in May, AILA called upon DHS to suspend the program. The reforms announced today include the creation of an advisory committee on Secure Communities, a complaint process, and a promise of more transparency about the program. “The reforms set in motion today begin to address the serious concerns we have about Secure Communities, but whether the program should be continued in the long run will depend on how ICE ultimately moves forward.”

Although Secure Communities has been billed as a way to identify serious criminals who pose a threat to our communities, 60 percent of those deported under the program have never been convicted of a serious crime or any crime. AILA members have reported numerous cases of harmless individuals arrested for minor offenses like traffic violations and loitering who have been put indiscriminately in immigration proceedings.

“One purpose of the advisory board is to examine how DHS should handle individuals who are arrested for minor offenses. It is essential that DHS get that right. Harmless people who commit minor offenses should not be placed on a conveyor belt to deportation,” Pelta said.

On the Agenda – Worksite Enforcement

January 24, 2011 § Leave a comment

This week the House Judiciary Committee is scheduled to hold an oversight hearing on worksite enforcement. It is anticipated that the Republican-controlled House will take a decidedly more aggressive stance on this issue and ask the current administration to step up even more than it has to crack down on unauthorized workers. ICE, or Immigration & Customs Enforcement, is the agency in charge of running these crackdowns. In the recent years, the number of employers raided & fined due to immigration issues has increased exponentially, creating large ripple effects within the business community. An overarching concern that will need to be addressed in this and future hearings is how to approach the issue of worksite enforcement effectively in order to properly deal with willful violators of immigration laws without unnecessarily disrupting the business community or blocking the path to continued economic recovery. The Obama Administration has insofar worked on targeting violators aggressively, although in practice the way ICE has been implementing audits, including a lack of uniformity in how ICE targets employers and targeting employers whose violations seem to be mere technical errors, has been problematic. The challenge now is to address this issue with the mindset that enforcement should be carried out with minimal impact on businesses without harming workers and their families.

New Year Resolutions

January 5, 2011 § Leave a comment

After a disappointing finish to the year 2010 when DREAM failed in the Senate just one week after passing in the House, the agenda for the 112th Congress is already shaping up to signal the coming of more struggles ahead for immigration reform. An example of pressing issues that will be resurfacing include the issue of birthright citizenship and the 14th amendment. The Constitution grants citizenship to those born in the US, regardless of their parents’ citizenship. The infamous Dred Scott decision made by the Supreme Court in 1857 had temporarily taken this right away to exclude US-born children of slaves. The decision created such deep-seated anger within the civil rights community and eventually led to the adoption of the 14th Amendment in 1858, which became the foundation of equal protection, due process and American civil rights laws. Since then the U.S. Supreme Court has consistently upheld the constitutional right to citizenship. Unfortunately, over the years, efforts made to undermine the 14th Amendment have materialized repeatedly with the introduction of bills to deny U.S. citizenship to children whose parents are in the U.S. illegally or on temporary visas. The Citizenship Clause of the 14th Amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” There are current efforts being made by legislators and restrictionist groups to rollback the citizenship provision as a way to curb illegal immigration. Certainly our immigration system needs reform, although far be it for that to begin with eroding the very basic principles for which our great nation stands. Let’s resolve in the year 2011 to keep fighting the good fight without turning on each other, to set our sights far and high, and to not be fazed by the difficult battles that lie ahead.

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