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ICE Prosecutors Have Been Told To No Longer Use A Biden Memo That Provided More Power To Decide Which Immigration Cases To Drop

The email indicates that a federal ruling on Thursday will have major implications for ICE and how it operates.

Posted on August 20, 2021, at 3:28 p.m. ET

Gregory Bull / AP

US immigration prosecutors were told Friday they should no longer use a Biden administration memo that gave them broad discretion in which cases they decide to pursue, according to an internal email obtained by BuzzFeed News.

The email indicates that a federal ruling issued Thursday blocking the administration’s policy to limit who ICE officials prioritize will have major implications for the agency and how it operates.

While ICE officers on Friday were told they no longer can use the memo limiting arrests by agency officials, immigration prosecutors were also informed their work would be impacted. John Trasviña, the head ICE attorney, said federal judge Drew Tipton’s order meant that a policy that had instructed prosecutors they could consider dismissing cases for immigrants who have been longtime green card holders, are pregnant or older people, have a serious health condition, or have been in the US from a young age should be not be used pending further guidance.

“As a practical matter, you may continue to exercise traditional discretion in individual cases consistent with your best judgement and as the law allows, but please cease any affirmative review or consideration of requests for prosecutorial discretion under the parameters of my memorandum,” Trasviña wrote.

Immigrant advocates said the decision would have an immediate impact.

“Despite always having the power to reunite immigrant families, director Trasviña's directive today means immigrant communities will continue to suffer for the indefinite future,” said Sophia Gurulé, immigration policy counsel with the Bronx Defenders.

Biden officials believed the memo was 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 said, with some cases taking years to be heard. Department of Homeland Security officials also argued that the memo empowered ICE prosecutors to make decisions on how best to use their time.

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 someone should be released from detention.

The memo represents the latest change pushed by the Biden administration, which is intent on reshaping how ICE officers and prosecutors handle arrests and deportations. In recent months, ICE officials have set up a process for immigrants to appeal deportations and arrests, sharply limited who can be arrested at courthouses across the US, and mandated that people no longer be referred to as “illegal aliens” in official communications.

But those plans appear to be in flux after Tipton’s ruling. The judge previously blocked the administration from continuing with a 100-day moratorium on most deportations. On Thursday, Tipton, a Trump appointee, also struck down the administration’s attempt to limit deportations, which had been challenged by Texas and Louisiana. The judge said the policy violated the Administrative Procedure Act and the decision to arrest and detain someone could not be made through agency discretion. He agreed to issue a preliminary injunction stopping the prioritization policy.

Unlike the Trump administration, which treated every undocumented immigrant as a priority for arrest and removal, Biden wants to primarily target those with past convictions for certain crimes.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.