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The Bottom Line
The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.
In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA. In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.
But one thing is clear. With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process. This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.
On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.
This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion. It is anticipated that specific guidance on process will be provided.
For more information on how to submit a request for PD, please see the ICE Website.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek. He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.
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Read the rest of Richard’s outstanding and very informative analysis at the link.
It’s critical that Immigration Judges and the BIA take an active role in “encouraging and motivating” parties to maximize the use of PD. One possible tool is proactively closing certain types of cases without waiting for motions.
For example, the modest step of granting TPS to Cameroonians in the U.S. (https://immigrationcourtside.com/2022/04/16/%f0%9f%97%bdbiden-administration-grants-tps-to-cameroonians-a-modest-step-forward-it-also-illustrates-the-horrible-illegality-immorality-of-the-biden-administrations-co) and the just announced TPS for Ukrainians (https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/tps-for-ukraine-advance-copy) offers EOIR an opportunity to simply close these non-detained cases (except ones with pending criminal charges) without waiting for the parties.
Either party that wants the case back on the docket can, of course, make a motion to redocket. Based on my experience with several past similar programs at the BIA, I anticipate that such motions would be relatively rare. Moreover, I would be reluctant to “redocket” a case without a joint agreement from the parties that it will be resolved in a “short hearing,” or a compelling reason to proceed in Immigration Court (e.g., the respondent failed to apply, committed a crime, or was denied TPS).
It’s going to take teamwork, cooperation, and creative thinking among the parties and the courts to get dockets back in shape so that Immigration Judges can do their jobs in something “approaching real time.”
PD could be the key to success; or, it could become just another in the long line of things that looked good on paper but never achieved full potential. Time, and the efforts of all parties concerned to solve the problem in the most constructive and practical ways possible, will tell.
🇺🇸Due Process Forever!!
PWS
04-18-22