Prosecutorial Discretion

by | Jun 28, 2022 | IMMIGRATION LAW

Prosecutorial Discretion - Law Offices of Todd Becraft
The Biden administration over the last year and a half has been working to lighten the immigration court load to prioritize resources. This is like a policy that the Obama administration also pursued. The primary difference being that when the Obama administration closed immigration court hearings, immigrants were permitted to keep their work authorization if they previously qualified for one. The Biden administration provisions left most folks with no immediate access to work authorization.

The first policy memorandum regarding this new policy was issued by Secretary Alejandro Mayorkas on September 30, 2021, “Guidelines for the Enforcement of Civil Immigration Law” (“Mayorkas Memo”). Since the issuance of this memo, the Biden administration has issued more guidelines culminating in their most recent referred to as the “Doyle Memo.” This was reported in the New York Times with the headline “ICE Lawyers Directed to Clear Low-Priority Immigration Cases.” (New York Times, April 4, 2022).

On Friday, June 10, 2022, Judge Andrew Tipton of a Federal District Court in Texas issued final judgment in Texas v. United States, a lawsuit brought by Texas and Louisiana to challenge the Biden administration’s enforcement priorities. The order is the culmination of an ongoing effort by the attorneys general of Texas and Louisiana to force the Biden administration to continue the Trump administration’s cruel and inhumane immigration enforcement policies. If allowed to go into effect, Judge Tipton’s order will vacate the original Mayorkas Memo in its entirety.

The order did not go into effect until yesterday, June 27, 2022. The Tipton order is on appeal and the decision may be reversed. That said, the Texas court sent immigration courts into disarray this week as many migrants expected their deportation matters to be terminated and now, they must face an inefficient and often cruel court system to determine their future. To the extent that fairness is rooted in managing expectations, the current state of affairs is particularly onerous and truly highlights once again how divided we are as a nation.

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