The underpinnings of Prosecutorial Discretion came to light in a famous case handled by our Founding Member, Leon Wildes in his handling of former Beatle John Lennon’s bitterly contested Deportation matter (1971-1976). We are proud to provide an update on the Immigration Service’s recent policy announcement.
On April 3, 2022, a memorandum was issued by the Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry Doyle. The memo became effective on April 25, 2022.
The “Doyle Memo,” in effect, implements the guidance issued by Secretary Alejandro Mayorkas of the Department of Homeland Security (DHS) (Mayorkas Memorandum) on September 30, 2021, and explains how OPLA interprets three enforcement priority areas identified in the Mayorkas Memorandum: national security, public safety, and border security. The Doyle Memorandum defines these terms in the following way:
Priority A: Threat to National Security. A noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security. When determining whether a noncitizen otherwise poses a danger to national security, OPLA attorneys are to consider whether the noncitizen has perpetrated human rights violations in the past, threatening “our strong national interest in welcoming refugees.”
Priority B: A noncitizen who poses a current threat to public safety because of serious criminal conduct. Whether a noncitizen poses such a threat turns on the seriousness of the criminal conduct and a balancing of the totality of the circumstances. OPLA attorneys should consider aggravating and mitigating factors, described in the Mayorkas Memorandum, in their analysis.
Priority C: A noncitizen is a threat to border security if: (a) they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) they are apprehended in the United States after unlawfully entering after November 1, 2020. Threats to border security can also include cases where the noncitizen has a history involving serious immigration benefit fraud or smuggling of noncitizens.
The Doyle Memorandum then goes on to discuss how OPLA should exercise Prosecutorial Discretion (PD), as early in the proceedings as possible, in six contexts: (1) not filing or canceling Notices to Appear (NTAs); (2) moving to administratively close or continue removal proceedings; (3) moving to dismiss removal proceedings; (4) pursuing appeals; (5) stipulating to issues, joining in motions to grant relief, and joining motions to reopen or remand; and (6) taking positions in bond cases.
With the aim of removing cases from the docket, OPLA attorneys are to move affirmatively to dismiss cases without prior management approval or concurrence from a represented respondent or his or her counsel.
OPLA attorneys are otherwise encouraged to exercise PD in the other above-named contexts, keeping in mind the limited resources available to the agency and any compelling factors in an individual case. OPLA attorneys may also consider agreeing to continuances, keeping in mind “more efficient forms of prosecutorial discretion than repeated continuances to accommodate adjudication of any ancillary applications.”
The Doyle memorandum aims to direct resources to the Administration’s enforcement priorities, so as to reduce the congestion in the immigration courts and to ensure a fairer process for respondents.
Wildes & Weinberg was founded in 1960 by Senior Partner, Leon Wildes. Nearly three quarters of a century later, the firm continues to concentrate its practice in all aspects of U.S. immigration and nationality law, servicing the immigration requirements of prominent American and International firms, banks, industrial, financial, and manufacturing concerns, as well as law firms in connection with the personnel needs of their foreign national employees.
In addition, the firm has a distinguished clientele and has done substantial immigration work for performing artists, directors, writers, models, actors/actresses, athletes, fine artists, art dealers, curators, and literary agents. Most notable was Leon Wildes’ successful representation of former Beatle John Lennon and his artist wife, Yoko Ono in their deportation proceedings, the basis of which has inspired legislation, and has been portrayed in films, plays, and literary works worldwide. Some of the firm’s other distinguished clients include scholar Rabbi Lord Jonathan Sacks (z”l), as well as soccer icon Pele, Master Chef Jean-Georges and Former First Lady Melania Trump and her family.
Michael Wildes, the firm’s Managing Partner, is also currently serving his fourth term as Mayor of Englewood, New Jersey, is the author of Safe Haven in America: Battles to Open the Golden Door (which draws on over a quarter of a century of his practice in the immigration field), is an Adjunct Professor at the Benjamin N. Cardozo School of Law in New York, and serves as Counsel to Lincoln Center and several international/corporate law firms.
Despite difficulties currently being encountered in dealing with U.S. immigration authorities, the firm has maintained an extraordinary track record for success in its cases.
In addition, Wildes & Weinberg’s multilingual staff is spread throughout its offices in New York City, Englewood, New Jersey, Miami, Florida, and Los Angeles, California (by appointment only) and are known for their experience and special expertise in processing each foreign national’s case with nothing less than the highest level of professionalism.
For more information on our firm please visit www.wildeslaw.com or contact Michael Wildes at michael@wildeslaw.com.
