Lankford, Grassley Push DHS to Rescind Anti-Immigration Enforcement Guidance that Relies on Vacated ‘Mayorkas Memo’

WASHINGTON, DC – Senators James Lankford (R-OK) and Chuck Grassley (R-IA) are asking the Department of Homeland Security (DHS) when it plans to rescind a guidance memorandum from the Office of the Principal Legal Advisor (OPLA) within US Immigration and Customs Enforcement (ICE), which experts say could be used to dismiss hundreds of thousands of immigration court proceedings involving illegal immigrants in the United States. The memorandum relies on previous DHS guidance that has been vacated in federal court. 

“It’s evident that the Biden Administration has no intention of enforcing our laws to remove illegal immigrants from the US. Their continued unwillingness to enforce the law within our borders is what is fueling Biden’s border crisis, and the courts continue to tell the Biden Administration that their priorities and policies are unlawful. I will continue to hold them accountable for the crisis they have created,” said Lankford.

“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 said.

The senators specifically seek information about an April 3, 2022, memo issued by the Principal Legal Advisor within ICE OPLA regarding enforcement of civil immigration laws and the exercise of prosecutorial discretion in immigration court proceedings. That memo relied on a September 30, 2021, memorandum issued by Secretary Mayorkas providing guidelines for the enforcement of civil immigration law, which was vacated by a federal court in Texas last month. 

Grassley and Lankford press Secretary Alejandro Mayorkas to provide a date for rescinding the OPLA memo along with documents related to the memo and data about how many requests for prosecutorial discretion have been made and granted as a result of its implementation.  

Full text of the letter follows or can be found HERE.

Dear Secretary Mayorkas:

We are writing to you today regarding your Department’s implementation of an April 3, 2022, memorandum issued by Kerry E. Doyle, the Principal Legal Advisor within the US Immigration and Customs and Enforcement (ICE) Office of the Principal Legal Advisor (OPLA). The memorandum, entitled “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion”(the Doyle Memorandum), went into effect on April 25, 2022. Commentators from multiple sides of this issue have estimated that the policies and procedures directed by the Doyle Memorandum could result in the dismissal of 700,000 cases from immigration court. 

The Doyle Memorandum stated that its purpose was to “guide [OPLA Attorneys] in appropriately executing DHS’ enforcement priorities,” which were articulated in the civil immigration enforcement priorities discussed in your September 30, 2021, memorandum entitled, Guidelines for the Enforcement of Civil Immigration Law”(Mayorkas Memorandum).

As you are aware, the Mayorkas Memorandum was vacated by a federal court in Texas on June 10, 2022. On June 25^th, DHS posted a header on the Mayorkas Memorandum stating that “…ICE will not apply or rely upon the Mayorkas Memorandum in any manner.” Given that the Doyle Memorandum relied on the Mayorkas Memorandum, we ask for responses to the following questions and data requests no later than August 4, 2022. If the data requests will be delayed, please send the answers to questions 1, 2, and 5 separately:

1. When do you plan to rescind the Doyle Memorandum, given that the primary stated authority for that memorandum – the Mayorkas Memorandum – has been vacated?

1. Page 1 of the Doyle Memorandum cites as authority an April 3, 2022, Memorandum from Jonathan E. Meyer, DHS General Counsel, entitled Exercising Prosecutorial Discretion in the Enforcement of Civil Immigration Law. However, DHS has not released this memorandum. Please provide a copy of this memorandum.  

1. Since the implementation of the Doyle Memorandum, how many requests for all forms of Prosecutorial Discretion (PD) have been made nationwide in immigration court proceedings? How many have been granted?
1. How many requests for PD have been made in cases of aliens deemed to be priorities for enforcement under your September 30, 2021, memorandum How many have been granted?
2. How many requests for PD have been made in cases of aliens deemed to be non-priorities for enforcement under your September 30, 2021, memorandum? How many have been granted?

1. Since 12:01AM on June 25, 2022, how many requests for all forms of PD have been made nationwide in immigration court proceedings pursuant to the Doyle Memorandum? How many have been granted? 
1. How many requests for PD have been made in cases of aliens deemed to be priorities for enforcement under your September 30, 2021, memorandum? How many have been granted?
2. How many requests for PD have been made in cases of aliens deemed to be non-priorities for enforcement under your September 30, 2021, memorandum?  How many have been granted? 

1. Has DHS developed any memoranda, legal opinion, or other guidance regarding the use of the Doyle Memorandum in light of Judge Tipton’s vacatur of the Mayorkas Memorandum? If so, please provide a copy of the memoranda, opinion, or other guidance.  

Sincerely,