Biden Administration Memo Advises ICE To Use Discretion To Drop Certain Immigration Cases

Written by Carmine Sabia

OPINION: This article contains commentary which reflects the author's opinion




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The Biden administration sent Immigration and Customs Enforcement, ICE, attorneys advice on simply ignoring prosecuting some cases.

The memo, which was first published by Buzzfeed News on Friday, was originally drafted on May 27 and gives a list of factors for ICE attorneys to consider when determining which factors to prosecute.

It says that attorneys are allowed to ignore cases that involve green card holders; elderly immigrants, those who re pregnant or ill; and those who have been in the nation from a young age.

The guidance, written by chief ICE attorney John Trasviña, a President Biden appointee, was sent to prosecutors on May 27 and represents a shift in how the agency pursues deportation orders in immigration court by emphasizing the discretion prosecutors have in court. While it does not require prosecutors to toss cases, it could lead to more immigrants having the ability to push for delays or dismissal of their deportation cases.

Biden officials believe the memo is a way to cut the growing immigration court backlog and more efficiently use resources on cases that deserve attention. The staggering backlog of cases in immigration court, which number over 1 million, is unsustainable, officials say. Some cases take years to be heard.

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Department of Homeland Security officials also argue that the memo empowers ICE prosecutors to make decisions on who they pursue in court proceedings and how best to use their time. One ICE prosecutor who spoke with BuzzFeed News said the message of the memo was appreciated: “It’s good to be treated as a professional with legitimate judgment instead of an order-follower.”

DHS officials hope it leads to the public trusting that cases are not being pursued solely because they can be.

“The reality is that we have 1.3 million cases in the immigration court system today and it is extremely hard for a person to have their case heard at this point in a timely fashion,” said a DHS official said to BuzFeed News. “That is not a mark of a system that is working as you want it to be working. We are hoping this is not only going to lead to an immigration court system that is not only a little more manageable in its workload, but also that we’ll start to see results from this process that will themselves help to restore faith in the system itself in the way that the immigration laws are being administered.”

“As a general matter, making decisions about when and how to enforce the law in a way that is just and is fair and that resonates with people is one way certainly to show fidelity to the law, but also to build faith that the laws are being applied in a way that’s consistent with our values and that itself can help build confidence in the system as a whole,” the official said.

The memo looks to emphasize prosecutorial discretion as it relates to immigration 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,” Trasviña said in the memo.

The agency said it wants prosecutors to consider dismissing cases for green card holders and those who have been in the United States for a long time. In p[articular those who got their status at a young age and have significant ties to other family members in the United States.

“Dismissal of such cases that do not present serious aggravating factors will allow the noncitizen to maintain a lawful immigration status and conserve finite government resources,” it said.