Practice Alert: Post-vacatur OPLA Guidance on Prosecutorial Discretion

Background

On April 3, 2022, Immigration and Customs Enforcement (ICE) Principal Legal Advisor (OPLA) Kerry Doyle issued a memorandum (Doyle memo) directing OPLA attorneys to exercise prosecutorial discretion based on the DHS Secretary Alejandro N. Mayorkas’ September 30, 2021, memorandum, Guidelines for the Enforcement of Civil Immigration Law (Mayorkas memorandum). The Doyle memo went into effect on April 25, 2022.

Many ICE OPLA jurisdictions issued local guidance implementing the Doyle memo, including Standard Operating Procedures (SOPs), meeting questions and answers, and contact information.

Vacatur and Current State of Play

On June 10, 2022, the U.S. District Court for the Southern District of Texas vacated nationwide the Mayorkas memo that set forth DHS’s civil immigration enforcement priorities. See Texas v. United States, No. 6:21-00016 (S.D. Tex. June 10, 2022). The District Court’s order became effective Saturday, June 25, 2022. The previously issued SOPs are not currently in effect.

Since then, AILA’s ICE Liaison Committee has issued a practice alert confirming that affirmative prosecutorial discretion requests may still be made despite the vacatur (AILA Doc. No. 22062752). ICE has also updated its website to reflect the same, providing additional information in the Frequently Asked Questions section of the site.

AILA Doc. No. 21071933 | Dated July 27, 2022

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