On May 27, 2021, John Trasviña, the Principal Legal Advisor for ICE, sent a memo to prosecutors enabling them to use to Prosecutorial Discretion to dismiss pending cases in Immigration Court and to refrain from placing certain persons in removal proceedings.
This memo (which is yet to be released to the public) could save many thousands of people, perhaps hundreds of thousands, from deportation.
Currently, there are over 1.3 million pending cases in the Immigration Courts. Considering that there are less than 500 Immigration Judges across the U.S., it can take years to obtain a merits hearing in Court.
As a former INS prosecutor (1980-82), my view is that the deportation system is a disaster for Judges, immigrants and our country. It can years to deport a dangerous criminal. At the same time, persons with no criminal records who were brought to the U.S. as children and who are now college graduates may soon be subject to deportation.
It is necessary that the system have priorities regarding who should be placed in removal proceedings in Immigration Court.
A little history…
In 2014, ICE prioritized the following classes of persons for deportation:
- Persons convicted of serious crimes;
- National security threats; and
- Recent border crossers.
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President Obama deported more than 400,000 people in his first year of office, and well over 1 million during his first 3 years. All in all, he deported more people than any other President in history.
Because of this, President Obama was derisively referred to as the “deporter in chief”. In his favor, his priorities in determining who got deported made our country a safer place, and his DACA program protected hundreds of thousands of law-abiding young people from deportation.
Prosecutorial Discretion Under President Trump
In 2017, under President Trump, prosecutorial Discretion was largely done away with.
Anyone present in the U.S. without authorization could be placed in removal proceedings before an Immigration Judge. The backlog of persons with cases in the Immigration Courts swelled to well over a million, overwhelming Immigration Judges and ICE prosecutors alike.
Many persons found themselves placed in removal proceedings when their employment-based or family sponsored applications for immigration status were declined. Even physicians working for the U.S. Veterans Administration and registered nurses treating cancer patients in public hospitals found themselves in Immigration Court or were deported from the U.S.
Despite President Trump’s harsh rhetoric about immigrants, the number of deportations declined. A lot of very good people were deported.
Biden Restores Prosecutorial Discretion
On June 4, 2021, BuzzFeed News published a story entitled “Biden Has Given Prosecutors More Power To Decide Which Immigration Cases To Drop”.
The story quotes ICE’s May 27, 2021 memo and makes it clear that ICE prosecutors authority to use prosecutorial discretion to determine which cases should be taken to Immigration Court, and which cases should be dismissed, has been restored.
The memo instructs prosecutors to focus their resources on public safety and national security threats. It also allows them to consider the following factors in deciding whether to prosecute, dismiss or delay a removal case:
- A person’s ties to the U.S.;
- Work history; and
- Whether the person is a victim or witness in a criminal proceeding.
The memo also advises ICE prosecutors to consider “mitigating” factors including:
- Family ties to the U.S.;
- Educational pursuits;
- Contributions to the community;
- Health;
- Age; and
- Pregnancy status
The article also contains the following quotes for the memo:
“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.”
and
“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.”
This memo represents a huge change in immigration enforcement. I will continue to update you as to how this plays out.
Prosecutorial Discretion – Additional Resources
- Understanding Prosecutorial Discretion in Immigration Policy and Recommendations for Moving Forward (4-19-21)
- Comparing Trump and Obama’s Deportation Priorities
- Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times
- Immigration Court Backlog Tool
