In its latest move to dismantle immigration enforcement in the United States, the Biden administration has issued a 17-page directive to attorneys in ICE’s Office of the Principal Legal Advisor (OPLA, which represents the United States in immigration court) telling them to tank cases that don’t fit into the president’s immigration “priorities”. It affects “at least” 700,000 pending matters, roughly 40 percent of the cases on the immigration courts’ dockets. There is a lot in there for the alien respondents — but nothing for the American people, public order, or our system of justice.
Kerry E. Doyle, Esquire. That directive was issued on April 3 by Kerry E. Doyle, ICE’s principal legal advisor (PLA), the agency’s de facto general counsel.
Although Doyle’s bio identifies her as “a recognized expert in complex immigration issues”, I had never heard of her in my nearly 30 years of immigration practice. That’s likely because she is new to ICE, and to federal service for what that’s worth: She has been “Managing Partner with the Boston immigration law firm of Graves & Doyle” for the past two decades.
Prior to that, Doyle “worked in the nonprofit sector representing immigrants, asylum seekers, and refugees in Hong Kong, Miami and Boston”. And, not surprisingly, at one time she was the “chapter chair of the New England Chapter of the American Immigration Lawyers Association (AILA)”, which represents the interests of private immigration lawyers.
After she was named ICE PLA, the local PBS outlet in Boston described Doyle as “an outspoken critic of the agency” who “has led many lawsuits against it”, explaining:
Doyle has ... been particularly outspoken against ICE on Beacon Hill [the Massachusetts legislature], including one appearance in January 2020, where she called ICE “out of control” during a hearing over the Safe Communities Act, which would limit how state and local municipalities interact with federal immigration enforcement.
Like many high-profile district attorneys in major cities, including Chesa Boudin in San Francisco and Larry Krasner in Philadelphia, Doyle is a career defense attorney in a prosecution role. She seems an odd fit for ICE OPLA, but all of this goes to explain much of what is in the April 3 directive.
Background on DHS Immigration Enforcement “Priorities”. Since Inauguration Day, the Biden administration has attempted to restrict ICE’s interior immigration enforcement efforts in a series of policy memos, the latest of which was issued by DHS Secretary Alejandro Mayorkas on September 30 (the “Mayorkas memo”).
I say “has attempted to restrict” because two earlier iterations of those restrictions were enjoined in part by a federal judge in Texas, while the Mayorkas memo is currently under a partial injunction issued by Judge Michael Newman of the U.S. District Court for the Southern District of Ohio on March 22.
Despite that most recent injunction, however, the ICE OPLA directive is premised upon three “priorities” for immigration enforcement that are the basis of the Mayorkas memo: “threats to national security” (terrorists and spies); “threats to public safety” (primarily aliens who have engaged in “serious criminal misconduct”); and “threats to border security” (aliens who entered the United States illegally on or after the arbitrary date of November 1, 2020).
Needless to say, the Immigration and Nationality Act (INA) does not limit ICE action or removability to those three “priorities”, but rather renders removable all aliens who are inadmissible under section 212 of the INA and deportable under section 237 of the INA.
And, notably, those grounds of inadmissibility and deportability are written in mandatory terms. For example, section 237(a) of the INA begins: “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed.” (Emphasis added.)
Similarly, section 212(a) of the INA starts as follows: “Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States.” (Emphasis added.) No wonder Doyle thinks ICE is “out of control” — Congress has given it strict marching orders.
The Mayorkas memo does not explicitly state that ICE officers can’t go after any other removable aliens who do not fall within one of his arbitrary restrictions (he learned from the earlier injunction). Rather, his memo explains: “The civil immigration enforcement guidance does not compel an action to be taken or not taken”.
That said, the memo calls for a “rigorous review of our personnel' s enforcement decisions throughout the first ninety (90) days of implementation of this guidance”, and for “longer-term review processes” after that 90-day period. As a former line government employee with decades of service, I can read between those lines.
The April 3 ICE OPLA Directive. Although she alludes to the language in the Mayorkas memo about the “priorities” compelling and not compelling action, Doyle is even less coy than the secretary about the department’s intentions in her April 3 directive.
She first directs her lawyers to review all their (hundreds of thousands of) cases to determine which ones fall within Mayorkas’ three priorities, if they have not been “classified for prioritization” already.
Priority cases are to be identified within PLAnet (OPLA’s case management system) based on their specific priority, while cases that do not fall within any of those three narrow classifications are to “be classified, and recorded in PLAnet, as a nonpriority case”.
That will enable Doyle and other DHS higher-ups to make sure that their diktats are being followed, but Doyle goes one step further by rendering the local OPLA chief counsels “ultimately responsible for the priority determinations made by the attorneys in their OPLA field locations (OFLs)”.
Specifically, those chief counsels are directed to approve any designation of a case as a “threat to national security” or a “threat to public safety” (Doyle apparently trusts her “out of control” lawyers enough to use a calendar and figure out when November 1, 2020, was). That means that those chief counsels are ultimately on the hook if some apparatchik disagrees with their lawyers’ assessments.
Note that chief counsels, like ICE attorneys generally, are career employees with careers and pensions on the line. You better believe that they understand the implications of the PLA’s statements and recognize that PLAnet is now an electronic snitch.
By the way, this prioritization nonsense does not end after the initial determination is made. Should an ICE line attorney learn of “additional information that is material to the” alien respondent’s priority (or nonpriority) determination, including “affirmative submissions by the” alien, “the attorney should reassess the case in light of that information to evaluate whether it either reinforces or contradicts that earlier determination.”
If all that assessment and reassessment sounds like a massive, senseless, needless waste of resources, it is. Again, alien respondents are removable or not, and under the INA and regulations, that decision is supposed to be made by the immigration judge. Doyle’s regime, in essence, provides an ongoing “pre-adjudication appeal” of that decision before a removal order is even considered.
Prosecutorial Discretion. The assessment of ICE’s pending cases as priorities or “nonpriorities” feeds into the next step in that directive: The “tanking cases” part, all in the name of “prosecutorial discretion”.
As the Doyle directive explains, in implementing the prioritization “framework” in the Mayorkas memo, “OPLA attorneys must be particularly mindful of the resource constraints under which we operate at a time when the immigration courts’ dockets total over 1.5 million cases nationwide.”
That poor, poor $8 billion agency. Keep in mind that ICE spends more per annum than six of the 50 states, but I digress.
As I have explained before, “limited resources” is the canard that the Biden administration drags out to explain why it refuses to enforce the immigration laws in the United States, and the Doyle directive is more of the same. If the PLA were truly concerned about resource allotment, she would not have burdened her lawyers with the case assessment/reassessment protocol I described above.
As for prosecutorial discretion, Doyle asserts that “like other government attorneys, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with applicable guidance”. That is valid, but when the “applicable guidance” is an order to exercise “prosecutorial discretion”, the “discretion” component goes out the window — which is true of this directive.
Want proof? Consider the following statement: “In performing their duties, OPLA attorneys are expected to exercise discretion at all stages of the enforcement process in accordance with the factors and considerations set forth in the Mayorkas Memorandum and this guidance.” The whole idea behind “prosecutorial discretion” is that the prosecutor exercises it, or not. “Mandatory prosecutorial discretion” is an oxymoron.
No Discretion in Priority Cases — with One Shocking Exception. For cases that fit neatly on Mayorkas’ procrustean “priorities” bed, ICE lawyers are (properly) not allowed to exercise discretion, with one (shocking) exception: Stipulations to grants of statutory withholding or CAT protection.
If the OPLA attorney concludes that, say a terrorist, spy, or child sex abuser would be persecuted or tortured if removed, “the OPLA attorney should give serious consideration to stipulating to such mandatory forms of protection.”
Terrorists, spies, and child sex abusers (the latter like other aliens who have been convicted of aggravated felonies) are not eligible for discretionary forms of relief or protection, and for that reason statutory withholding and CAT are the only way they get to stay in the United States.
As an attorney, I would rarely if ever stipulate to any relief for a simple reason: I may have missed something or overlooked some precedent. Just because I thought the alien was eligible did not mean that the immigration judge agreed. If I thought that the alien respondent was eligible for relief, and the immigration judge granted it, I would simply waive appeal — that’s what prosecutors do, but as noted Doyle is new to the job.
Stipulating in such a case would put the immigration judge in a bad position were the judge to deny the relief or protection: The alien (or counsel) would include my stipulation front and center in the appeal.
Given the fact that the Mayorkas memo has limited the universe of aliens whom ICE can actually seek to remove to the worst actors, the Doyle directive’s extension of prosecutorial discretion to priority aliens seeking statutory withholding and CAT means that some serious criminal or national security risks will be released, to pose a danger to the public.
Non-Priority Cases. The Doyle directive flips that script when it comes to non-priority cases. From “non-filing” of notices to appear (NTAs, the charging documents in removal proceedings, like criminal indictments) to the non-filing of appeals from immigration judge orders, that directive “encourages” the exercise of prosecutorial discretion except where it mandates the exercise of prosecutorial discretion.
With respect to NTAs, the directive states: “The OPLA-preferred forms of prosecutorial discretion for non-priority cases are either non-filing of the NTA, or, if the NTA has already been filed, dismissal of proceedings.” If you want to know why the Doyle directive affects more than 700,000 cases, look no further than that sentence.
As it relates to dismissal of non-priority cases involving unrepresented respondents, Doyle directs OPLA attorneys to “advise” the court that “OPLA believes dismissal of proceedings is appropriate” and “OPLA will agree to a continuance to allow” the respondent to seek counsel, all the better to decide whether or not to agree to a dismissal. Notably absent from any of this is whether the alien is removable and should, under the INA, be removed.
If the respondent has a lawyer, the OPLA attorney is authorized to dismiss the case unless — get this — dismissal would adversely affect the alien. Your interests don’t matter.
The administrative closure of nonpriority cases — in which they would be shelved indefinitely (the average administratively closed case has been gathering dust for 17 years) — is disfavored, however, unless again dismissal would adversely affect the alien. In those cases, administrative closure is fine with Doyle because, you know, ICE is “out of control”.
OPLA attorneys are “encouraged” to stipulate to relief if government counsel concludes that the alien is eligible for such relief. They are also allowed to agree to continuances with the caveat that “there is a strong preference for more durable and efficient forms of prosecutorial discretion” — like dismissal or stipulating to relief.
While asserting that OPLA lawyers can continue to appeal nonpriority cases, Doyle explains: “Appellate advocacy should focus on priority cases, absent a compelling basis to appeal a nonpriority case.” “Focus” is a loaded word in this context, especially since PLAnet the snitch is watching the attorney’s every move, and telling HQ.
Finally, the Doyle directive states that OPLA lawyers can join in on motions to reopen cases where aliens are under final orders of removal (that is, in which they have received due process) — or not — but then she warns “where reopening and dismissal of a case would” give an alien back his or her green card and the alien is “not an enforcement priority, OPLA attorneys should generally join motions to reopen and dismiss in such cases.”
Consider that statement. Green card holders (formally “lawful permanent residents”, or LPRs) are not subject to removal unless they do something (like commit a crime) that renders them removable. Despite that fact, and even though they had their days in court and were ordered removed anyway, Doyle is telling her lawyers to simply give them their LPR status back, to live here forever.
That may be the biggest waste of time and resources in this directive and is the reason why the universe of removable aliens who may benefit from Doyle’s decree is virtually limitless.
There are likely tens of thousands of LPRs (or more) who have been ordered removed in the past five decades but who never actually departed. Most, if not all, will get their green cards back because by now their convictions are so old that they aren’t “priorities” anymore.
Wasteful De Facto Amnesty. Doyle’s April 3 directive not only wastes OPLA lawyers’ time and resources (and your $8 billion), but for the hundreds of thousands of aliens who will benefit, it is a de facto amnesty.
By directing the termination and dismissal of those hundreds of thousands of cases involving —again — removable aliens — Doyle is making it impossible for any future administration to place more than a handful back into proceedings. And the LPRs who will get their green cards back? They will be here until the next time that they violate the law and end up in proceedings.
All those removable aliens will be able to live and work in the United States indefinitely — which in this context means forever, or at least until they themselves decide to leave. That is the definition of an amnesty.
Doyle’s directive to ICE attorneys runs 17 pages. Any document that requires 17 pages to explain the concept of “prosecutorial discretion” to experienced prosecutors is not about discretion at all; it is about removing discretion from those lawyers and forcing them to do the opposite of what they were trained to do: enforcing the law.