Page 44 - The Indian EYE 052022
P. 44
IMMIGRATION MAY 20, 2022 | The Indian Eye 44
Ethical Considerations when
ICE Moves to Dismiss Removal
Proceedings under the Doyle
Prosecutorial Discretion Memo
CYRUS MEHTA considered enforcement pri- viable relief options they tioners of immigration law. tion to dismiss on the merits,
orities under the criteria laid have identified. As mentioned above, the considering arguments from
KAITLYN BOX* out in the earlier Mayorkas For cases where remov- Doyle memo authorizes ICE both sides.
O n April 3, 2022 the memo. The goal of the ICE al proceedings have not yet prosecutors to file motions have a right to be placed in
noncitizens
Certain
to dismiss nonpriority cases,
Immigration
prosecuting attorney under been initiated, the Doyle
U.S.
the new policy is to achieve memo encourages ICE at-
and Custom En-
not agree with the dismissal. whose affirmative asylum
forcement (ICE) Office of justice rather than remov- torneys to consider not filing even if the noncitizen does removal proceedings. One
the Principal Legal Advisor ing the noncitizen. Indeed, a Notice to Appear (NTA). If an individual in a removal application is not granted
(OPLA) Kerry E. Doyle is- under the Doyle memo, the If an NTA has already been proceeding has an applica- must be referred for remov-
sued a memorandum (“the ICE attorney’s role as the issued, the Doyle memo tion for relief pending before al proceedings pursuant to 8
Doyle memo”) which em- government’s representative prescribes filing a motion to EOIR such as an application CFR 208.14(c)(1). Similarly,
powers ICE attorneys to in removal proceedings is to dismiss the case, whether or for cancellation of removal under 8 CFR 216.4(d)(2)
exercise prosecutorial dis- proactively alert the immi- not the noncitizen consents and the case is outright dis- and 8 CFR 216.5(f), the de-
cretion in handling the cases gration judge to potentially to the dismissal. The memo missed, the noncitizen might nial of a joint I-751 or waiver
of noncitizens who are not dispositive legal issues and also outlines some of the lose work authorization or I-751 petition requires the
other tools ICE prosecu- another benefit associated issuance of an NTA. A dis-
tors can employ as an with the pending applica- missal of such an application
exercise of discretion, tion. This individual will also would clearly be in viola-
including stipulations be deprived of the ability to tion of not just the applica-
to issues or relief, con- pursue the application and ble regulations but also the
tinuances, not pursu- win cancellation of removal. Doyle memo. Still, the IJ can
ing appeals, joining in Dismissal will put the non- dismiss a proceeding where a
motions to reopen, and citizen back to square one meritless asylum application
administrative closure, as an undocumented person. was filed with the USCIS
which temporarily halts It is possible that a nonciti- for the sole purpose of seek-
removal proceedings zen who has been granted ing cancellation of removal
by taking a case off a cancellation of removal but in immigration court. See
court’s docket for the is waiting in the queue for a Matter of Andrade, 27 I&N
time being. However, number can also be subject Dec. 557 (BIA 2019. Thus,
the Doyle memo states to a unilateral motion to dis- attorneys must be vigilant to
that OPLA’s strong miss by an ICE prosecutor. contest a motion to dismiss if
preference is to remove Thus, it is crucial for attor- the facts of the case can be
nonpriority cases from neys to promptly notify cli- distinguished from Matter
the docket permanent- ents of an outright dismissal of Andrade. For instance,
ly through dismissal or and any associated conse- even if the asylum applica-
similar means, so that quences. Board of Immigra- tion may have been filed
resources can instead be tion appeals case law also with the intention for seek-
m of devoted to priority mat- provides a basis for attor- ing cancellation of removal,
CYRUS D. MEHTA & PARTNERS PLLC ters. Some of the guid- neys to be able to challenge but the asylum application
outright dismissals that are had merit, this would not be
ance provided in the deleterious to their clients. a basis for an IJ dismiss the
Doyle memo will pro- In Matter of G-N-C-, 22 proceeding.
vide helpful relief to I&N Dec. 281 (BIA 1998), The Doyle memo also
individuals in removal the BIA held that once the encourages ICE attorneys
proceedings, or indi- NTA is filed an Immigra- to employ other tools in ex-
viduals who have not tion Judge must not simply ercising prosecutorial dis-
yet been placed in pro- cancel a charging document cretion, such as filing joint
ceedings, the memo upon USCIS’ invocation of motions to dismiss. There is
2 6th Floor also raising some ethical prosecutorial discretion, but often a short time frame to
conundrums for practi- should adjudicate the mo- respond to these motions,
www.TheIndianEYE.com
