After years of being told by the Trump administration to aggressively pursue most deportations, US immigration prosecutors have now been given broad discretion in which cases they decide to pursue or drop altogether, according to government documents obtained by BuzzFeed News.
Immigration and Customs Enforcement prosecutors have been instructed by the Biden administration that they can consider dismissing cases for immigrants who have been longtime green card holders, are pregnant or elderly, have a serious health condition, or have been in the US from a young age, the documents state.
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.
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 who spoke on the condition of anonymity with 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.”
Trasviña instructed his attorneys to follow the Biden administration’s priorities on focusing resources on public safety and national security threats, but also explained that prosecutors should consider an immigrant’s circumstances in cases. He wrote that prosecutors can assess someone’s ties in the US, work history, or status as a victim or witness in a criminal proceeding when deciding whether to prosecute, dismiss, or delay cases.
“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,” a DHS official said.
The memo represents the latest change pushed by a Biden administration that is intent on reshaping how ICE officers and prosecutors pursue arrests and deportations. In recent weeks, ICE officials have set up a process for immigrants to appeal deportations and arrests via individuals at agency headquarters, sharply limited who could be arrested at courthouses across the US, and mandated that immigrants no longer be referred to as “illegal aliens” in official communications.
“This is absolutely 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.”
ICE prosecutors are key players in the immigration system as they pursue deportations and make daily decisions on whether certain cases should be dismissed or whether an individual should be released from detention. Immigration attorneys regularly request cases be delayed, closed, or dismissed in immigration court and prosecutors can choose to support or oppose those efforts as part of their discretion.
In Trasviña’s memo, prosecutors are told that they should be screening cases for potential prosecutorial discretion regardless of whether attorneys request it. This screening should happen at the beginning stages throughout the entirety of the process, officials added.
Decision-making for prosecutors was limited during the Trump administration.
In 2017, ICE prosecutors were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation.
“Prosecutorial discretion is an act of administrative leniency, it is not an entitlement,” wrote Tracy Short, who was the head attorney for the agency at the time.
Short told attorneys they were no longer required to check the email inbox used to receive requests for leniency from immigration attorneys. Short also wrote that ICE attorneys could consider prosecutorial discretion for immigrants in certain circumstances, such as a relative of a military member, an obvious claim to status, an “extraordinary humanitarian factor,” or a significant asset to state or federal law enforcement. Even then, ICE attorneys had to receive written approval from senior leadership in Washington.
The memo appears to bring back many of the same principles ICE prosecutors followed during the Obama administration. During that time, ICE attorneys were encouraged to request the dismissal or indefinite suspension of deportation cases of immigrants who were not serious criminals or national security threats. To do so, the administration directed ICE attorneys to look for qualifying cases and encouraged immigration attorneys to email ICE with requests for “prosecutorial discretion.”
The guidance sent by Trasviña on May 27 aims to reemphasize the concept of prosecutorial discretion.
“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 wrote in his memo.
His memo not only reestablishes the use of the inbox for prosecutors to check for requests to delay or dismiss cases, but adds in a layer of reasons prosecutors should consider. Prosecutors are told to assess “mitigating” factors, such as whether the immigrant has family ties to the US, is pursuing an education, their contributions to the community, or their health, age, and pregnancy status, when moving forward with cases.
Whether someone fits the priorities of the Biden administration — namely whether they have certain criminal convictions — will be a major factor in the decision to agree to “continue” or delay cases.
According to the memo, cases that can be dismissed — in the absence of other serious factors — include whether an immigrant is a military member or has a relative in the military, whether they will “likely” be granted status through a relative or Temporary Protected Status, and compelling humanitarian factors.
Trasviña writes that while some humanitarian factors will “weigh more heavily” than others, those factors can include whether the immigrant has a serious health condition, is elderly, pregnant, a minor, or a victim of domestic violence or other serious crime. The head prosecutor notes that someone coming to the US as a young child and living in the country continuously should play a factor, as does whether they have a physical or mental illness or are a primary caregiver to someone with such a condition.
In those instances, prosecutors are told they can agree to a motion made by the immigrant to dismiss the case. DHS officials want the dismissal process to be mostly led by immigration attorneys and their clients, as not everyone wants a case cleared from the court dockets.
The agency also wants its prosecutors to consider dismissals for green card holders who have been in the US for many years, especially those who got their status at a young age and have a close tie to family and the community, according to the memo.
“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,” Trasviña wrote. Immigrants who are “significant” assets to law enforcement are also to be considered for dismissals, as are those who are helping civil rights investigations led by the government, he added.