I’ve written about this before. Prosecutorial Discretion (or “PD” for short) is the authority of, for our purposes, a federal agency charged with enforcing the immigration law to decide where it should focus its resources and whether or how to enforce, or more often in our cases, not to enforce, the immigration law against an individual. The Office of the Principal Legal Advisor (“OPLA”), an office within U.S. Immigration & Customs Enforcement (“ICE”), is the Department of Homeland Security’s (“DHS”) representative before the Executive Office for Immigration Review (“EOIR”) in exclusion, deportation, and removal proceedings. OPLA relies upon PD (among other things) as a guide to inform some of its decision making.
In November 2022, the Supreme Court heard oral arguments in the case United States v. Texas.[1] At issue is whether Texas (and other state plaintiffs) can prevent the Biden Administration from adopting and implementing its prosecutorial enforcement guidelines. Whether plaintiffs can do this has profound implications for all immigrants, regardless of whether they are being detained or not.
Let me back up. In September 2021, DHS Secretary Alejandro Mayorkas issued enforcement priorities agency-wide to his immigration workforce. As has always been done, Secretary Mayorkas outlined what factors made someone a priority for immigration enforcement. The updated policy took effect on November 29, 2021.[2]
Since then, two federal lawsuits have been filed, led by Texas and Ohio, that have challenged the final September 2021 enforcement priorities. Both states asked the courts for preliminary injunctions to temporarily restrain the Biden administration from relying on Secretary Mayorkas’s enforcement guidelines pending the respective litigation. In the Ohio lawsuit, the Sixth Circuit Court of Appeals stayed a lower court’s preliminary injunction. Incredibly, in the Texas case, the district court struck down the enforcement guidance. As a result, the enforcement guidance has been vacated as of June 25, 2022, pending this appeal.
The Biden Administration’s approach to immigration enforcement is decidedly more immigrant-friendly than its predecessor’s. Indeed, in January 2021, DHS issued temporary immigration enforcement guidance that generally focused the agency’s enforcement priorities toward aliens who posed a threat to national security, border security, or public safety. DHS updated its guidance in September 2021. In its announcement, Secretary Mayorkas quoted a 2012 Supreme Court decision:
A principal feature of the removal system is the broad discretion exercised by immigration officials. … Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.[3]
As I have said ad nauseum to countless people, Secretary Mayorkas noted that we have upwards of 11 million undocumented or otherwise removable noncitizens in the United States. To think that we have the resources or wherewithal to remove them is ridiculous. (My words, not his.) But he went on to note what I would describe as the moral imperative as to why we need to prioritize resources (apart from the practicality of it).
In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways. Numerous times over the years, and presently, bipartisan groups of leaders have recognized these noncitizens’ contributions to state and local communities and have tried to pass legislation that would provide a path to citizenship or other lawful status for the approximately 11 million undocumented noncitizens.[4]
This thought process is reasonable and appealing to me on so many levels. Notably, Justice Antonin Scalia, a brilliant jurist, even if a bit too conservative for me, writing for a unanimous court some 23 years ago, said “[T]he [government] may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.” [5] “’[I]n each instance, the determination to withhold or terminate deportation is confined to administrative discretion.’” [6]
So, what happened at oral argument? Well, let’s just say it was animated, and I’m not about to opine as to where the Court will land come June when it starts issuing its decisions for this term. What was clear, however, were two (2) things. First, there is the allocation of power. That is, this action is the first time the question of who controls the direction of prosecutorial discretion has been considered. Is it the states, the courts or the executive branch? A second concern is one that I’ve already spoken to. If Texas (and others) are successful, does the federal government have the resources and wherewithal to find, detain, and then remove every noncitizen who falls under the mandatory detention statutes?
We shall see.
[1] Docket No. 25-58.
[2] Before these, DHS had issued a set of interim priorities, which were also challenged in court, but remained in effect until November 29, 2021.
[3] Arizona v. United States, 567 U.S. 387, at 396 (2012).
[4] Secretary Mayorkas’s September 30, 2021 memorandum Guidelines for the Enforcement of Civil Immigration Law (Mayorkas Memorandum).
[5] American–Arab, 525 U.S. 471, 487–92 (1999).
[6] Id. at 485 (quoting 6 C. Gordon et al., supra § 72.03[2][a]).