The Biden Administration Is Now Allowing Prosecutors To Dismiss Certain Deportation Cases

The memo is the latest effort on the part of the Biden administration’s push to reshape the role of immigration enforcement in the US.

Gregory Bull / AP

A US Border Patrol agent looks out over Tijuana, Mexico, along the US–Mexico border.

The Biden administration issued a memo to ICE prosecutors on Monday authorizing them to consider dismissing certain cases involving immigrants who did not cross the border recently and are not public safety threats , according to a document obtained by BuzzFeed News.

The memo is the latest effort on the part of the Biden administration’s push to reshape the role of immigraton enforcement in the US by focusing on what they consider more serious targets.

Unlike the Trump administration, which treated every undocumented immigrant as a priority for arrest and removal, President Joe Biden wants to target immigrants who are deemed “public safety” threats. Conservative critics have said officers have been hamstrung and effectively told not to do their jobs.

“This memorandum renews the commitment of all ICE attorneys, in exercising their inherent prosecutorial discretion authority, to advance the interests of justice and build public confidence in our immigration system. Consistent with the enforcement guidance issued by Secretary Mayorkas, ICE focuses its civil immigration enforcement priorities on the apprehension and removal of non-citizens who pose a threat to our national security, public safety, and border security, consistent with all legal requirements and applicable court orders,” an ICE spokesperson said.

The guidance, written by chief ICE attorney Kerry Doyle, a Biden appointee, was sent to prosecutors on Monday and represents another attempt by the agency to emphasize the discretion prosecutors have in court and lower the backlog of cases in immigration court.

“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 DHS’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence,” Doyle wrote.

The memo could be a way to cut the growing immigration court backlog. The staggering list of cases in immigration court, which number over 1 million, is unsustainable, officials say. Some cases take years to be heard.

“[ICE] attorneys must be particularly mindful of the resource constraints under which we operate at a time when immigration courts docket toal over 1.5 million cases nationwide. Sound prioritization of our litigation efforts through the appropriate use of prosecutorial discretion can preserve limited government resources,” Doyle wrote.

The memo explains to prosecutors that there are various ways to exercise discretion, but removing nonpriority cases from the docket is the agency’s preference.

Specifically, for immigrants who are not represented by lawyers and aren’t priorities, prosecutors were told they should tell the court that a dismissal is appropriate and that the case should be continued to allow the immigrant to seek counsel and consider a dismissal. For those who are represented by lawyers, prosecutors can also seek dismissal with the backing of the attorney for the immigrant.

The role of an attorney in deportation cases is pivotal and can make all the difference between an immigrant obtaining relief, like asylum, in court and being deported. The memo appears to be a move to have ICE prosecutors allow for additional due process for immigrants who do not have attorneys.

Unlike the Trump administration, which treated every undocumented immigrant as a priority for arrest and removal, the Biden administration wants to target certain types of undocumented immigrants, primarily people who are deemed “public safety” threats. Elsewhere, the agency prioritizes enforcement against those who crossed without authorization after November 2020 and those considered national security threats. Conservative critics have said officers have been hamstrung and effectively told not to do their jobs.

A September DHS memo created fewer restrictions for officers than the previous interim guidelines, instead informing officers to conduct an overall assessment of an immigrant’s background. The administration has come under legal fire as well – a federal court judge recently blocked a portion of the September memo.

Aggravating factors that could lead to an arrest include the seriousness of an offense, while mitigating factors that could lead an officer to avoid making an arrest would include someone’s lengthy history in the US or familial ties. In the memo, Department of Homeland Security Secretary Alejandro Mayorkas explained that the agency does not have the resources to target every one of the 11 million undocumented immigrants in the country and that many of those without legal status are contributing members of society.