The Depressing State of Immigration Court Proceedings Under Biden

Is ICE’s Principal Legal Advisor complying with the federal court order?

By Andrew R. Arthur on July 13, 2022

RealClearInvestigations has published a report on the state of the nation’s immigration courts — where alien respondents charged with removability are granted relief or ordered removed — under the Biden administration. It’s depressing, and it also raises the question of whether leadership in ICE’s Office of Principal Legal Advisor (“OPLA”, the agency’s de facto general counsel) is complying with a federal court order vacating DHS’s latest non-enforcement memo.

The Courts. The immigration courts, staffed by immigration judges (IJs), are housed within the Executive Office for Immigration Review (EOIR), a component of the Department of Justice (DOJ).

Why are there “judges” within DOJ? Because unlike judges of the federal district and circuit courts, IJs are attorneys appointed by the attorney general (AG) to conduct certain immigration hearings, including removal proceedings under section 240 of the Immigration and Nationality Act (INA).

And the AG needs a lot of IJs. While section 103 of the INA largely vests the secretary of Homeland Security with authority for administering and executing the immigration laws (responsibilities that he shares with the secretary of State), that section also makes clear that, when it comes to questions of law, the AG is in charge.

Thus, the AG is responsible for determining who should be admitted, who should be removed, and which aliens should be granted protection and relief from removal. Given that there were more than 1.636 million cases pending in the immigration courts at the end of April, however, the AG must delegate his authority, and the IJs and members of the Board of Immigration Appeals (“BIA”, also in EOIR) are his delegates.

There are approximately 600 IJs, who hear cases at 68 immigration courts and three adjudications centers spread throughout the United States, as well as in the Northern Mariana Islands and Puerto Rico.

ICE Attorneys. Your interests — as a U.S. citizen or lawfully admitted alien — are represented in immigration court by 1,250 attorneys in ICE OPLA, headed by one Kerry Doyle, an erstwhile immigration lawyer in private practice.

Well, your interests are supposed to be represented by OPLA, at least. As I explained in April, after she was named to her current position, the local PBS outlet in Doyle’s prior home base of Boston described her 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.

In that earlier piece, I opined: “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”. Nothing she has done since has disabused me of that notion.

Doyle’s “Guidance to OPLA Attorneys” and the Mayorkas Memo. The focus of my piece was a memo Doyle issued on April 3, captioned “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion” (Doyle memo).

The Doyle memo was, essentially, a directive to ICE attorneys to tank cases that did not fit within an earlier memo, issued by DHS Secretary Alejandro Mayorkas and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).

The Mayorkas memo is the third in a trio of administration diktats (the first of which was issued shortly after Biden took the presidential oath) implemented to limit the ability of immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).

Building upon its predecessors, the Mayorkas memo “prioritizes” three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of “serious criminal conduct” (threats to public safety).

While not as restrictive in its scope as the prior two memos, Mayorkas’ requires immigration authorities to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action.

None of those factors are included in the grounds of removability in the INA; the Biden administration created them out of whole cloth to fit the sort of immigration system it wanted Congress to give it.

In her memo, Doyle directed ICE’s lawyers — the folks paid by you to represent your interests in immigration court — to review their pending cases and determine whether they are “priorities” for enforcement action under the Mayorkas memo, assuming 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 would allow Doyle, her minions, and DHS higher-ups to make sure that their decrees are being followed, but Doyle went 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”.

Specifically, those chief counsels are directed to approve of any designation of a case as a “threat to national security” or a “threat to public safety”. That means that those chief counsels are ultimately on the hook if any Biden flunky disagrees with their line lawyers’ assessments of whether an alien is a spy, terrorist, or serious criminal.

Doyle’s prioritization implementation scheme does not end after the initial determination is made. Should an ICE attorney learn of “additional information that is material to the” alien respondent’s priority (or nonpriority) determination, that must be considered, as well.

This includes “affirmative submissions by the” alien, which ICE lawyers are compelled to consider. If you want to understand how that process works, all you need do is go to the “Prosecutorial Discretion and the ICE Office of the Principal Legal Advisor” page on ICE’s website. It explains:

When OPLA receives a request for [prosecutorial discretion], OPLA will first evaluate whether your case is an enforcement priority, guided by Secretary Mayorkas’ September 30, 2021 Memorandum and the Doyle Memorandum. OPLA makes the priority designation on an individualized basis by reviewing all available information related to your case, weighing any mitigating and aggravating factors, and consistent with all legal obligations.

Note that the term “prosecutorial discretion” does not appear in that paragraph online. Rather, that term is used so often on the “prosecutorial discretion” webpage that it is abbreviated “PD”, as if it were some sort of embarrassing medical condition.

Generally, however, “prosecutorial discretion” is a term used to describe authority a law enforcement officer has not to enforce the law in a given instance or to file a lesser charge. The classic example is the cop who gives you a warning rather than a ticket when you are clocked doing 70 in a 55 zone.

To give you an idea of how much authority Doyle is giving her lawyers, note that the “prosecutorial discretion” webpage states the following: “If OPLA determines that your case is not a priority for enforcement — often referred to as a ‘nonpriority’ — then OPLA will generally exercise PD.” (Emphasis added.)

Such programmatic tailoring of “PD” is about what you would expect from a lawyer who thinks her agent-clients are “out of control”.

Incredibly, it gets worse. That page links to another page, which contains (and I am not making this up) a “Requesting Prosecutorial Discretion in Immigration Court Quick Reference Card”. It contains a short explanation of prosecutorial discretion, a flowchart detailing the “Steps to Request PD”, and a list of positive and negative factors (under the header “Is My Case a Priority?”).

As an aside, included in that list (under “Examples of Positive or Mitigating Factors”) is: “Whether circumstances of your arrest indicate improper discrimination or retaliation by law enforcement.” It is unclear how, exactly, Doyle expects criminal alien respondents to be objective on this count, but it suggests ICE is not the only law-enforcement entity she thinks is “out of control”.

The second page consists of “Frequently Asked Questions”. It includes a helpful QR code applicants can scan to find a list of OPLA email addresses where their “PD” requests can be filed, sort of like the ones at your neighborhood Appleby’s that allow you to order chicken wings without having to wait on the server.

The Judicial Order Vacating the Mayorkas Memo. The webpages that I have described are up and running as I write this (some of the QR codes aren’t, though). That’s a problem because the Doyle memo is premised on the Mayorkas memo, and the Mayorkas memo was vacated on June 10 by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, in Texas v. U.S.

The Biden administration sought a stay of Judge Tipton’s order from the Fifth Circuit, which was denied on July 6. DOJ has subsequently asked the Supreme Court for a stay, and although Justice Alito has ordered the state plaintiffs (Texas and Louisiana) to file their response by 5:00 PM EDT on July 13, Judge Tipton’s order remains in effect.

Pending a stay from the Supreme Court, however, the Mayorkas memo has no effect. Note that the PD webpage currently has a flag at the top, which states:

On June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating Secretary Mayorkas's September 30, 2021 memorandum, Guidelines for the Enforcement of Civil Immigration Law (Mayorkas Memorandum). Accordingly, until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.

That says nothing, however, about the Doyle memo, and no similar flag appears at the top of it, though the Mayorkas memo has one. It would be simple for OPLA to pull down its PD webpage and the attachments thereto — at least while litigation in Texas is pending — but that hasn’t happened.

Is OPLA Still Issuing Programmatic Prosecutorial Discretion? So, is ICE OPLA still inviting, and issuing, programmatic prosecutorial discretion in line with the Doyle memo? That’s brings me back to RealClearInvestigations.

Its piece is captioned “A Visit to U.S. Immigration Court, Where the Action Is ... Not”, and it’s true to its title, describing immigration court sessions in New Orleans, La., where not much adjudicating is occurring. Plenty of cases are being heard (kind of), but few IJs are ordering alien respondents removed.

The whole depressing article is worth the lengthy read if you want to understand just how bad a shape the immigration court is under the Biden administration.

One passage discussing the Mayorkas and Doyle memos, however, caught my eye. It states: “At the end of June it appeared the Biden administration would suspend the policy after it lost a lawsuit filed by Texas and Louisiana, but the practice has continued, albeit less comprehensively, according to several immigration attorneys.”

That passage, coupled with the fact that the “PD” webpage is still up (although, again, confusingly flagged) raises the question of whether, and to what degree, OPLA lawyers are still being forced to grant prosecutorial discretion in accordance with of the Doyle memo.

Note that Judge Tipton vacated the Mayorkas memo, meaning that it has no effect, restoring the status quo immediately prior to the Biden administration. The Doyle memo was, as noted, dependent on Mayorkas’s, but is it also vacated, at least for now? Texas and Louisiana may want to ask the administration whether it views the Doyle memo as a free-standing grant of authority, or more accurately a free-standing impediment to ICE lawyers in prosecuting removal cases.

Respectfully, it would be easier, cheaper, and more efficient for the Biden administration to apply the immigration laws as written. Until that happens, however, Congress may want to ask DHS to publish QR codes the American people can scan to request the immigration enforcement they are paying for.