Experts Advise Sec. Mayorkas on Discretion, Immigration Enforcement: Letter

Over 120 law professors and experts, Feb. 2, 2021

"On Day 1 of the Biden-Harris administration, the White House and the Department of Homeland Security (DHS) issued an Executive Order and a memorandum intending to restore the use of humane and sensible discretion in immigration enforcement. Since the issuance of this order and memorandum, immigrant communities and their advocates and legal service providers have been saddened to see U.S. Immigration and Customs Enforcement (ICE) continue to engage in enforcement activities, including deportations, that appear at odds with the policies issued. In this memo, the undersigned law professors and legal experts share our analysis of the current state of law regarding DHS’s authority to refrain from executing removals in individual cases and to implement its interim enforcement priorities. Importantly, the recent Temporary Restraining Order entered in Texas v. United States does not undo or limit the longstanding and unchallenged authority of DHS to exercise prosecutorial discretion favorably towards a person or group of persons after they have received a removal order (and beyond the removal period). We urge DHS to use this authority to halt deportations scheduled to take effect today, tomorrow and in the coming weeks whenever they conflict with the Biden Administration’s commitment to a humane immigration system and with years of legal precedent and agency practice recognizing the importance of prosecutorial discretion in immigration enforcement. ... On the campaign trail, President Biden spoke passionately about reasserting “America’s commitment to asylum-seekers and refugees” and doing better to “uphold our laws humanely and preserve the dignity of immigrant families, refugees, and asylum-seekers.” These same values were included in his Immigration Platform, his agenda for the Latino Community,3 and the Biden-Sanders Unity Task Force Recommendations on immigration,4 along with President Biden’s own 2020 World Refugee Day message.5 Realizing these commitments will require that DHS utilize the full scope of tools available to it to exercise prosecutorial discretion in the interests of justice. Unnecessarily restricting agency discretion, without legal justification, will inevitably result in the continuation of enforcement practices that send asylum seekers back to their persecutors and destabilize families and communities."