Doyle Memorandum: Frequently Asked Questions and Additional Instructions

On June 10, 2022, the U.S. District Court for the Southern District of Texas, in Texas v. United States, 606 F. Supp. 3d 437 (S.D. Tex. June 10, 2022), vacated DHS Secretary Alejandro Mayorkas's Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021) (September 2021 Memorandum). Following this order, OPLA attorneys stopped applying the September 2021 Memorandum and sections of the Doyle Memorandum that rely on the priority enforcement framework established by the September 2021 Memorandum when making prosecutorial discretion determinations or for any other purpose. On June 23, 2023, the U.S. Supreme Court, in United States v. Texas, 143 S. Ct. 1964 (2023), issued an opinion reversing the decision of the district court. As a result of the U.S. Supreme Court’s decision, DHS and OPLA are reinstituting the September 2021 Memorandum and the Doyle Memorandum in their entirety.

PD is the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce the law against an individual. PD is an indispensable aspect of any functioning legal system. The use of PD in the immigration context helps advance good government by reducing redundancies across DHS, achieves just and fair outcomes in individual cases, and advances the DHS mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence and reflects our Nation’s values. In practice, PD allows OPLA attorneys to decide how they want to proceed on an individual case, such as agreeing to remove a case from the immigration court docket through dismissal or administrative closure or agreeing to stipulations on issues such as relief, bond, or continuances. PD is exercised on a case-by-case basis.

The Doyle Memorandum streamlines OPLA’s process for designating enforcement priorities and provides clearer parameters through which OPLA attorneys may exercise PD in individual cases. In general, any case designated as a nonpriority will be eligible for PD, including non-filing of the Notice to Appear (NTA), dismissal, administrative closure, stipulations to issues or relief, continuances, not pursuing an appeal, joining motions to reopen, and stipulation on bond amount or conditions of release. OPLA’s preferred form of PD, however, will continue to be non-filing of the NTA, or, if removal proceedings have commenced, dismissal of removal proceedings — though a lasting durable solution through stipulations to all or part of an application for relief will also be considered, as appropriate. Any case designated as a priority will generally not be considered for PD in the forms of non-filing the NTA, dismissal of proceedings, or administrative closure, but the noncitizen may seek other forms of PD and reconsideration of the priority designation, particularly if there are emergent developments in the case. See Doyle Memorandum at 10.

OPLA attorneys will actively review cases to determine a noncitizen’s eligibility for PD during their normal preparation and handling of cases. A noncitizen, therefore, does not have to submit a request for PD to be considered for PD, though affirmative requests, particularly for cases not on the active docket or with imminent hearings, will be accepted. Noncitizens are encouraged to affirmatively request PD at the earliest possible stage in removal proceedings. The Doyle Memorandum also expands the delegation of decision-making authority. OPLA attorneys are generally empowered to exercise PD in nonpriority cases without supervisory review for individuals who have undergone a fingerprint-based background check.

OPLA has reinstituted all sections of the Doyle Memorandum as of July 28, 2023.

Yes. OPLA attorneys will continue to assess any emergent or previously unavailable information that may affect the designation of a noncitizen’s case. See Doyle Memorandum at 8. In addition, noncitizens may affirmatively request a reassessment of their priority designation, so long as the noncitizen provides the appropriate supporting evidence, including new or previously unavailable information, if applicable. Id. at 8, 10.

Yes. Before exercising PD in a case, OPLA attorneys must first evaluate a case to assess its priority designation under the enforcement priorities. PD in the form of non-filing of an NTA, dismissal, or administrative closure will be reserved for nonpriority cases only. OPLA attorneys will generally litigate to completion all cases that are designated a priority, although forms of PD other than non-filing of an NTA, dismissal, or administrative closure may still be considered on a case-by-case basis.

If a case is designated a nonpriority, then OPLA attorneys may exercise PD in that case. OPLA’s preferred form of PD for a nonpriority case is non-filing of the NTA, or, if removal proceedings have already been initiated, dismissal of the case. OPLA attorneys may also consider other forms of PD, such as stipulations to factual or legal issues, for all cases. See Doyle Memorandum at 10, 13 (“OPLA attorneys are encouraged to narrow issues . . . particularly—but not exclusively—in nonpriority cases.”).

Yes. Cases designated as non-priorities pursuant to the Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021) issued by Secretary Alejandro Mayorkas and the Doyle Memorandum may be considered for PD in the form of dismissal of proceedings. If a juvenile noncitizen has a pending or approved SIJ petition with U.S. Citizenship and Immigration Services, OPLA attorneys should treat the pending or approved petition as a strong mitigating factor in determining whether the juvenile noncitizen is an enforcement priority and eligible for PD, regardless of their entry date. Before exercising PD in the form of dismissal, OPLA will require noncitizens who are 14 years and older to have completed a fingerprint-based background check with the Federal Bureau of Investigations.

No. OPLA attorneys will generally not agree to dismiss or administratively close a case that is determined to be a priority under the September 2021 Memorandum, but the noncitizen may seek other forms of PD and reconsideration of the priority designation, particularly if there are emergent developments in the case. See Doyle Memorandum at 8, 10. A noncitizen may affirmatively request that the respective OPLA Field Location (OFL) reassess the priority designation by contacting the OFL directly. If the priority designation is changed to nonpriority, then the noncitizen would be eligible for PD in the form of dismissal or administrative closure.

Generally, no. OPLA attorneys may unilaterally move to dismiss cases that warrant dismissal under the Doyle Memorandum, with limited exceptions, including protecting the noncitizen’s statutory right to review before an immigration judge. See Doyle Memorandum at 10–12.

Given OPLA’s limited resources, noncitizens who seek PD, including dismissal of their case, should still affirmatively request PD at the earliest stage possible. Requests for any form of PD made at a late stage in removal proceedings are discouraged, although late-emerging, material, and previously unavailable information or materially changed circumstances pertinent to the exercise of discretion will be taken into account. See Doyle Memorandum at 9.

Yes. OPLA attorneys may unilaterally move to dismiss nonpriority cases, with limited exceptions, even if the noncitizen prefers to seek relief in removal proceedings, though stipulating to facts or law or for relief to reach a final resolution of the case may also be appropriate in some circumstances. See Doyle Memorandum at 10–12, 13 (providing limited exceptions to OPLA’s authority to unilaterally move to dismiss). In circumstances when OPLA unilaterally files for dismissal, the noncitizen may still file an opposition to OPLA’s motion to dismiss removal proceedings with the immigration court. The immigration judge would then decide whether to grant the motion. Where the noncitizen affirmatively advises the respective OFL of the noncitizen’s preference to remain in removal proceedings in advance of OPLA’s filing of the motion to dismiss, an OPLA attorney will determine on a case-by-case basis whether to unilaterally seek dismissal or consider another form of PD.

For cases involving unrepresented noncitizens, OPLA attorneys will consult their Chief Counsel or the Chief Counsel’s designee before unilaterally moving to dismiss removal proceedings and determining, in the interest of justice, which cases may be amenable to PD in the form of a stipulation to facts, law, or relief in the alternative. See Doyle Memorandum at 11.

Generally, yes, though OPLA’s preferred form of PD is dismissal. OPLA attorneys may, however, consider administrative closure, as well as other forms of PD, on a case-by-case basis. OPLA attorneys may also consider unilaterally moving for administrative closure in accordance with Matter of Avetisyan, 25 I&N Dec. 479 (BIA 1996), and Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017). See Doyle Memorandum at 12.

Generally, no. Noncitizens who have previously had biometrics collected by DHS in relation to any application for relief will not be required to submit information documenting their criminal histories (or lack thereof). Additionally, in some instances, noncitizens who have had their fingerprint taken in conjunction with an immigration enforcement action will also not need to submit information documenting their criminal histories. Noncitizens who have never had their biometrics collected by DHS or had their fingerprints taken in relation to an immigration enforcement action will be required to submit a Federal Bureau of Investigations (FBI) fingerprint-based background check with their PD request or at the request of the reviewing OPLA attorney before a final PD decision can be made. The submission of an FBI fingerprint-based background check with a PD request may facilitate a quicker final decision, even for those individuals who have previously had their biometrics collected by DHS. OPLA will not agree to exercise PD by dismissing or administratively closing removal proceedings in the absence of a current criminal history check.

OFLs will determine whether to withdraw an appeal that OPLA has already filed with the Board of Immigration Appeals on a case-by-case basis and in accordance with existing OPLA appellate guidance and procedures. See Doyle Memorandum at 14.

Yes. OFLs may continue to reserve appeal in nonpriority cases, among other reasons, to ensure clear and fully reasoned decisions are issued by the immigration judge and to assist OPLA in determining whether an appeal should ultimately be perfected. See Doyle Memorandum at 14.

Yes. OFLs may continue to file an appeal of any decisions issued in a nonpriority case. The decision to pursue an appeal, however, will be judiciously made on a case-by-case basis and in accordance with existing OPLA appellate guidance and procedures. See Doyle Memorandum at 14.

OPLA attorneys will determine, on a case-by case basis and in accordance with local guidance and applicable law, whether to join a motion to reopen. OPLA attorneys may, in the exercise of PD, join a motion to reopen to allow a nonpriority case to proceed on an application for permanent or temporary relief outside of immigration court, as well as to pursue relief in immigration proceedings if such relief was not previously considered. Cases that can be reopened and dismissed for the consideration of new relief before U.S. Citizenship and Immigration Services will be viewed most favorably for joint motions to reopen. OPLA attorneys will, however, focus the government’s finite resources on litigating priority cases rather than relitigating previously completed cases. See Doyle Memorandum at 14–15.

Yes. OPLA attorneys may continue to agree to exercise PD, such as agreeing to continuances and stipulating to issues or relief for all cases, including those that are designated a priority. The exercise of PD in the form of non-filing of the Notice to Appear, dismissal, or administrative closure, however, is reserved for nonpriority cases only. See Doyle Memorandum at 10, 13.

Yes. OPLA attorneys may exercise discretion, on a case-by-case basis, by deciding not to appear for a hearing before the immigration judge. This includes master calendar hearings. The respective OFL is solely responsible for decisions on whether to waive appearance at any given hearing in accordance with current guidance. See Doyle Memorandum at 15–16.

Yes. OPLA attorneys may consider requests to stipulate to bond amounts and alternative conditions to detention, as appropriate and in consultation with ERO, in priority cases on a case-by-case basis, where the noncitizen is not subject to mandatory detention under the Immigration and Nationality Act, based on an analysis of the mitigating and aggravating factors in the case. See Doyle Memorandum at 15.

Generally, OPLA does not require a PD request to follow any strict format. However, any PD request should outline the type of PD being sought, along with the circumstances that you want OPLA attorneys to consider in their assessment. The PD request should also track the instructional sheets each OFL has implemented and communicated to the private immigration bar and unrepresented noncitizens and submitted via the designated PD email box or as otherwise specified in the OFL’s instructional sheet. OPLA welcomes assistance from the private immigration bar and pro bono groups to aid unrepresented noncitizens in the submission of PD requests.

OPLA does not charge a filing or application fee to receive, process, or consider PD requests. Therefore, a fee is not required when submitting a request for the exercise of PD. An attorney or legal representative may charge a fee for helping to prepare a request for PD, but no part of that fee is paid to the U.S. Government. The U.S. Department of Justice’s Executive Office for Immigration Review’s website includes additional information about how to report an attorney or legal representative who you suspect may be engaged in criminal, unethical, or unprofessional conduct. You may also report fraud by non-attorneys to the U.S. Federal Trade Commission or to your state Consumer Protection Office.

View a map of the 25 OFLs

The following table contains email addresses for each OFL that you (or your legal representative) should use when requesting PD in your case. Some OFLs may prefer to receive PD requests via ICE eService. You (if you are unrepresented or “pro se”) or your legal representative may register for ICE eService online. If you have questions about how to submit a PD request, please contact your local OFL.

Those engaging in email exchange with OPLA’s PD email addresses acknowledge and agree to a limited waiver of data security that shall only attach to the electronic service and transmittal of documents that may contain sensitive personally identifiable information (SPII). Senders to the email addresses should be aware, however, that ICE cannot ensure that information transmitted outside of the DHS network will remain secure during transmission. This waiver applies to both your receipt of information transmitted by ICE and the transmission of information from you to ICE. Please also be advised that (1) from the time information leaves the DHS network until receipt by your email system and (2) during the time that information is being transmitted by your email system to the DHS network, the information contained within the email, including but not limited to SPII, is not necessarily secure against interception. You are strongly encouraged to encrypt any documents containing SPII prior to sending it to OPLA via email and to send passwords under separate email. By participating in use of the PD email addresses, you expressly agree to assume the risk that SPII may be intercepted during transmission to or from the DHS network and, as a result, be obtained by or disclosed to third-parties.

This guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.