Biden gives ICE attorneys more discretion to drop immigration cases

The Biden administration is giving immigration prosecutors more discretion over which cases to pursue or even drop, a move that could limit the new cases funneling into the overwhelmed immigration court system.

A memo to Immigration and Customs Enforcement (ICE) prosecutors allows the agency's lawyers to drop cases against green card holders and those who are elderly, pregnant or have serious health conditions or have been in the U.S. from an early age, according to a memo obtained by The Hill.

It also advises lawyers to weigh other “compelling humanitarian factors,” like whether a defendant is a caregiver or the victim of a crime.

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The move is a stark turnaround from the Trump years, where the agency was encouraged to aggressively pursue deportation cases. 

“Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the department's mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence,” chief ICE attorney John Trasviña wrote in the memo, which was first drafted May 27.

The memo also encourages lawyers to use their discretion “at the earliest point possible.”

The memo's contents were first reported by BuzzFeed News.

The move comes as the immigration court backlog has swollen to 1.3 million cases — a figure that more than doubled under the Trump administration — and where those whose future hangs in limbo are often stuck waiting years for their cases to resolve.

“At long last [ICE’s Office of the Principal Legal Advisor] has issued a memo that sets clear priorities for the hundreds of ICE attorneys prosecuting immigration cases so they can actually decide which of the 1.3 million cases in the immigration court backlog should move forward and which should not be using up finite government resources,” Greg Chen with the American Immigration Lawyers Association told The Hill.

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“Prosecutorial discretion is the hallmark of smart and effective law enforcement that was entirely absent during the previous administration and resulted in harmful consequences to people who have resided in the U.S. for years and that Americans overwhelmingly agree would not make sense to expend effort deporting,” Chen added.

Trasviña encouraged ICE prosecutors to consider mitigating factors, like whether the defendant has strong family ties in the U.S., their work history, or other contributions to their community. Cases can also be dismissed if a defendant serves in the military or has a family member who does. 

They are also asked to consider whether someone might gain legal status through other methods, particularly since many people with cases before the immigration court have also applied for some sort of status to remain in the country through U.S. Citizenship and Immigration Services.

The memo is in line with the interim enforcement priorities handed down to ICE officers in the field earlier this year, encouraging them to pursue only those with serious criminal records and requiring officials to seek permission from a higher up before pursuing anyone not meeting those standards.

An ICE spokesperson said the latest memo “renews the commitment of all ICE attorneys to advance the interests of justice and build public confidence in our immigration system” continuing the administration's focus on national security.

Trasviña told ICE prosecutors that when a potential defendant has a criminal history, they should consider “the extensiveness, seriousness and recency” of any crimes along with any indication of rehabilitation. 

The memo also teases forthcoming guidance on the immigration court backlog “at a later date and in a comprehensive fashion”

“The size of the court backlog and the extraordinary delays in completing cases impede the interests of justice for both the government and respondents alike and undermine confidence in this important pillar of the administration of the nation’s immigration laws.”

—Updated at 6:47 p.m.