Republican Senators Press DHS Secretary Mayorkas to End ICE’s ‘Prosecutorial Discretion’ Policy

Republican Senators Chuck Grassley (R-IA) and James Lankford (R-OK) sent a letter to U.S. Department of Homeland Security (DHS) SecretaryAlejandro Mayorkas pushing him to end U.S. Immigration and Customs Enforcement’s (ICE) “prosecutorial discretion” policy.

In April, ICE’s Office of the Principal Legal Advisor (OPLA) issued a memo to the agency that provided agency officers with “prosecutorial discretion” to enforce immigration laws against certain migrants the agency deems an immediate threat.

OPLA’s memo relied on Mayorkas’s September memo to immigration officials that encouraged them to make “a case-by-case assessment of whether an individual poses a threat.”

As the Center of Immigration Studies’ Andrew R. Arthur explained, OPLA’s memo “was, essentially, a directive to ICE attorneys to tank cases that did not fit within an earlier memo.”

Arthur continued:

In her memo, [ICE Principal Legal Advisor Kerry] 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.

However, Mayorkas’s memo was vacated last month by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas.

The senators argued that OPLA’s directive should be thrown out because a federal judge vacated the underlying memo by Mayorkas.

ICE’s OPLA is headed by Kerry E. Doyle, a former career defense attorney and frequent critic of the agency.

Grassley said:

Secretary Mayorkas and the Department of Homeland Security are charged with fully and faithfully enforcing our immigration laws. This memo from the Principal Legal Advisor within ICE was misguided and is yet another Biden Administration initiative designed to severely undermine robust enforcement of our nation’s immigration laws. Given the recent federal court ruling vacating Secretary Mayorkas’ September 30 memo, we need to know that DHS will soon rescind this OPLA guidance memo as well, and start doing its job and enforce our laws. Otherwise, the illegal immigration crisis instigated by this administration’s irresponsible policies will only get worse.

Grassley and Lankford asked Mayorkas to provide an end date for the OPLA memo and more information related to the agency’s application of prosecutorial discretion.