The U.S. Immigration and Customs Enforcement (ICE) officials are given more discretion in the selection of which deportation cases to pursue or drop entirely. Congress has given the Department of Homeland Security in turn ICE the power to enforce immigration laws against a person or a group of people. The choice ICE attorneys make in deciding who to enforce the law against is called prosecutorial discretion. Each administration directs how the agency should use its discretion. The Biden administration made the announcement via an agency memo with giving guidance to ICE lawyers to use their prosecutorial discretion in prioritizing which case to pursue. During the Trump administration, ICE attorneys were directed to proceed with all removal cases without utilizing their discretion.

The new memo sets the following as DHS’s enforcement priorities: 1) national security, 2) border security, and 3) public safety. ICE attorneys have the choice to dismiss deportation proceedings against long-term permanent residents, noncitizens with serious health issues, and caregivers. Government attorneys are encouraged to use their discretion at all stages of enforcement, keeping an eye on the best use of prosecutorial resources. ICE attorneys have the discretion to drop cases against foreign nationals who serve in the U.S. armed forces, immediate relatives of those individuals, and noncitizens who are likely to gain legal status through the green card or temporary relief programs, like DACA and Dreamers. The ICE attorneys may also consider dropping cases against crime victims and immigrants involved in government investigations, including labor investigations. Immigrants considered national security or public safety threat are likely going to be prioritized for deportation. Immigrants who have been in the U.S. for an extended period of time and are productive members of society have a higher chance for their cases to be dismissed.

Immigrants in deportation proceedings and their attorneys have the option to petition ICE attorneys to use their discretion in the dismissal or delay of their case. However, even without a pending request, ICE attorneys can still determine which cases to pursue on their own.

There are multiple benefits from this new approach, including managing the 1.3 million cases currently in backlog. With ICE attorneys given the option of which cases to pursue or drop, it is anticipated that the backlog will drop dramatically. The exercise of prosecutorial discretion, where appropriate, achieves more fair and just results while promoting the efficient use of limited government resources. ICE attorneys are charged with carrying out justice for each individual case.

Although thousands of low-priority immigration cases could be administratively closed, the case is not permanently resolved. The closure of a case does not grant individuals any long-term legal status. They remain in a state of the unknown until there are options for a more permanent resolution to their residency.

If you have questions about your immigration status and how this policy change could affect you, contact our attorneys at ILBSG. We are here to help.

Deportation dhs ICE immigration Prosecutorial Discretion