On May 27, 2021, John Trasviña, the Principal Legal Advisor for ICE, sent a memo to government attorneys enabling them to use prosecutorial discretion to dismiss pending cases in Immigration Court and to refrain from placing certain persons in removal proceedings.

This memo 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., most Judges are overwhelmed with thousands of backlogged cases. In most instances, 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 take 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 deportation 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.

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”. However, his establishment of 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. This caused the backlog of persons with cases in the Immigration Courts to swell to well over a million, overwhelming Immigration Judges and ICE attorneys alike.

Many persons found themselves placed in removal proceedings when their employment-based or family sponsored applications for immigration benefits were denied. 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. But 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 which restored the ability of ICE attorneys to use prosecutorial discretion to determine which cases should be placed before Immigration Judges, and which pending court cases should be dismissed.

The memo instructs ICE attorneys 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 attorneys 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 from 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 welcome change to immigration enforcement, and will result in many thousands of cases currently clogging the Immigration Courts being dismissed.

Prosecutorial Discretion – Additional Resources