16 Jun 2022
NIPNLG Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo
"... Importantly, the earliest Judge Tipton’s order could take effect is Monday, June 27, 2022. The government has filed a notice of appeal and Judge Tipton has entered a temporary stay of the order to allow the government to seek emergency relief from the Fifth Circuit. It is difficult to know whether the Fifth Circuit will stay the Judge Tipton’s order pending appeal.3 Immigration practitioners should therefore continue to monitor this case and look for further updates from NIPNLG. If the order does take effect, practitioners should keep in mind that its sole effect is to vacate the categorical priorities established in the Mayorkas Memo. Nothing in the order precludes immigration officials from exercising prosecutorial discretion in individual cases. See Order at 62 (“Individualized decisions to abandon law enforcement are outside the reach of judicial review: a litigant cannot demand that DHS enforce the law against a particular person.”). Nor does the order require the detention or removal of any specific person. Even if the order goes into effect, practitioners should continue to make individualized requests for prosecutorial discretion on behalf of their clients with relevant DHS components, highlighting positive factors and contextualizing any negative factors in the case. Nevertheless, it is difficult to predict how the order will affect DHS’s prosecutorial discretion practices, so practitioners should be prepared for a less favorable enforcement climate. If the order goes into effect, DHS would not be able to rely on the Mayorkas Memo in taking any kind of favorable discretionary action. ..."
