Seeking Prosecutorial Discretion Post Texas v. United States

  • Legal Motions
  • Advocacy

On June 10, 2022, the District Court for the Southern District of Texas vacated the Mayorkas Memo in Texas v. United States. Following a failed stay request of the vacatur and an unsuccessful appeal to the Fifth Circuit, the Biden administration filed a petition for a writ of certiorari with the U.S. Supreme Court and sought a stay of the vacatur pending the decision. The U.S. Supreme Court denied the stay and scheduled oral arguments for December 2022.

As Texas v. United States remains in force, OPLA has signaled that it will no longer apply the  Mayorkas Memorandum or sections of the Doyle Memo that rely on the Mayorkas Memorandum when making prosecutorial discretion determinations. On July 21, 2022, OPLA updated its website to explain that it may still exercise its inherent prosecutorial discretion on a case-by-case basis. But how do we craft a request for prosecutorial discretion when we lack specific guidance?



This webinar will discuss how to seek prosecutorial discretion post Texas v. United States, what factors to consider before joining OPLA on a motion to dismiss, how to oppose unilateral motions to dismiss when dismissal is not in our client’s interests, and the effect on refiling asylum cases affirmatively with USCIS following dismissal.



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  • american immigration council
  • national immigration project
  • the advocates for human rights
  • lutheran immigration and refugee service
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