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Biden Administration Gives More Discretion to Prosecutors to Pursue or Drop Immigration Cases

On May 27, U.S. Immigration Customs and Enforcement (ICE) issued a memo that elaborated on the power of prosecutors to dismiss cases of immigrants with certain special concerns or situations. Unlike the previous government, the Biden administration has given the prosecutors the liberty to pursue or drop cases. Prosecutors had limited decision-making powers during the previous administration.

The memo directs ICE prosecutors to consider dismissing cases for immigrants who have been long-time permanent residents, who are pregnant or elderly or have a serious health condition, or have been in the U.S. since a young age. Certain criminal convictions will be a major factor in prosecutors deciding to delay the cases. The memo also encourages prosecutors to weigh humanitarian factors more heavily.

ICE Officials’ Power to Approve Prosecutorial Discretion

The agency wants to favor the dismissal of cases for green card holders who have been in the U.S. for many years, especially those who entered the U.S. as children. Immigrants who are significant assets to law enforcement are also considered for dismissals. The memo written by chief ICE attorney John Trasviña represents a shift in the agency policies showing a change in the discretion prosecutors have in Court.

The memo expresses the ICE officials’ thinking concerning arrests and deportations. Recently, ICE officials have set up a process for appealing deportation and arrests at agency headquarters, limited the arrests of undocumented immigrants in courthouses across the U.S. The praiseworthy move referred to in the memo is that undocumented immigrants no longer be referred to as “illegal aliens” in official communications.

“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 smartly and sensibly that promotes public confidence,” Trasviña wrote in his memo.

Backlog of Immigration Cases

With the overwhelming caseload in the immigration courts, along with the disruption caused by the COVID-19 pandemic, the discretionary power given to prosecutors will likely reduce the burden of cases on the immigration court. The estimated number of cases backlogging the immigration courts is over one million. Immigrants wait for years to appear before an immigration judge.

Department of Homeland Security officials also argue that the memo empowers ICE prosecutors to make their own decisions on whom to pursue in court. In appreciation, an ICE prosecutor told Buzzfeed News that “It’s good to be treated as a professional with legitimate judgment instead of an order-follower.

The Priorities Memo

On February 18, 2021, the ICE administration issued a priorities memo giving further directions on which non-citizens to target in pursuing removal. The memo instructs ICE attorneys to follow the Biden administration’s priorities on focusing resources on public safety and national security threats, also considering the immigrant’s circumstances in each case. While doing this, the prosecutor can assess someone’s ties in the U.S., work history, or status as a victim or witness in criminal proceedings when deciding whether to prosecute, dismiss, or delay cases.

“This is significant and a game-changer for many people who were completely out of luck,” said John Amaya, a former senior ICE official. “It will have a profound impact on individuals who had no path forward under the strict guidelines the last administration applied.”

The memo also encourages prosecutors to screen cases for potential prosecutorial discretion regardless of the attorneys requesting it.

©2023 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume XI, Number 173

About this Author

Raymond Lahoud Immigration Attorney Norris McLaughlin

Raymond G. Lahoud, Chair of the firm’s Immigration Law Practice, focuses exclusively on the area of immigration law and deportation defense for individuals, families, small to large domestic and multinational businesses and corporations, employers, international employees, investors, students, professors, researchers, skilled professionals, athletes, and entertainers, in every type of immigration or deportation defense matter—whether domestic or foreign.  While Ray’s immigration practice is global in reach, with service to individuals and organizations across the United States and beyond,...