Advocating for Prosecutorial Discretion in Removal Proceedings under the Doyle Memo

Removal Defense
Publication Date

On April 3, 2022, ICE Principal Legal Advisor Kerry Doyle issued guidance to all OPLA attorneys on how and when to exercise prosecutorial discretion in removal proceedings under DHS’s enforcement priorities. That guidance took effect on April 25, 2022 and replaces the previous OPLA guidance issued by former Principal Legal Advisor John Trasviña in May 2021. The Doyle guidance presents new opportunities for practitioners to seek positive outcomes for clients facing deportation, while also presenting some new challenges. This practice advisory provides key information on the Doyle memo and practice tips on advocating for prosecutorial discretion for clients in removal proceedings. The advisory also includes information on the ongoing litigation challenging DHS’s enforcement priorities and how that litigation may affect OPLA’s exercise of prosecutorial discretion.

The states of Texas and Louisiana have challenged the Mayorkas enforcement priorities memo in federal court, and the litigation is ongoing. On June 10, 2022, Judge Drew B. Tipton of the Southern District of Texas issued a decision, which took effect nationwide on June 24, 2022, vacating (cancelling) the Mayorkas Memo. The Fifth Circuit and U.S. Supreme Court subsequently denied the Biden administration’s request for a stay of the ruling. The Biden administration has appealed the District Court’s decision to the U.S. Supreme Court, and the Supreme Court will hear arguments in December 2022. Though the District Court’s decision does not mention the Doyle memo, the Mayorkas memo is referenced several times throughout the Doyle memo. As such, OPLA has stated that its attorneys are no longer applying the Mayorkas memo or any sections of the Doyle memo that rely on the Mayorkas memo framework, but may continue exercising prosecutorial discretion on a case-by-case basis. While the Mayorkas memo remains vacated, practitioners may continue requesting PD but should not cite the enforcement priorities and the Doyle memo. Though this practice advisory primarily discusses the Doyle memo, practitioners may continue to find the advisory useful for practice tips on advocating for PD based on general PD principles, including positive equities and humanitarian considerations. Please see our litigation update for the more information on the lawsuit.