Over the past few months, the Biden administration has issued a number of new rulings and policy changes to walk back Trump’s crackdown on immigrants.
In addition to a concern for justice, as opposed to enforcement for enforcement’s sake, the new guidance also breathes a welcome humanity into the discussion of immigration law.
Significantly, immigration enforcement agencies have instructed their personnel to stop using the degrading terms:
- “alien” and
- “illegal alien”.
Instead, they are to substitute those terms with:
- “noncitizen” or “migrant” and
- “undocumented individual”, “undocumented noncitizen”, or “undocumented migrant”.
One of the more recent policy changes comes in the form of a memorandum giving Immigration and Customs Enforcement (ICE) prosecutors “prosecutorial discretion” regarding which immigration cases to focus on.
In theory, this rule change will allow prosecutors to drop lower priority cases, as well as cases against people with special circumstances. Among other discretionary steps, prosecutors may agree to join respondents in removal (deportation) proceedings in requesting that their cases be dismissed.
From our team of New Orleans immigration attorneys at Pelton + Balducci, here’s a rundown of the new memorandum, as well as how it will affect those facing deportation today.
Prosecutorial discretion
The memo was issued by ICE Principal Legal Advisor John Trasviña, and sent out to the agency’s prosecutors, who are responsible for prosecuting those who have violated US immigration law.
The main theme of the memo is that prosecutors should exercise “prosecutorial discretion” when deciding which immigration cases to pursue, or even drop.
This allows prosecutors to make discretionary decisions based on a number of factors, and it even includes guidance about dismissing cases that are currently in deportation proceedings.
It lists categories of cases which should, “in the absence of serious aggravating factors,” be dismissed, including cases involving:
- Military service members or immediate relatives of service members
- Individuals likely to be granted temporary or permanent relief
- Compelling humanitarian factors, including people who meet the following criteria:
- people with serious health conditions
- elderly people
- pregnant people
- minors
- primary caregivers
- victims of domestic violence or human trafficking
- people who came to the United States as a young child
- Significant law enforcement or other governmental interest
- Long-term lawful permanent residents
Enforcement priorities under Biden
This memorandum to ICE prosecutors is building on the foundation laid by interim memoranda issued by the Biden Administration thus far.
One of President Biden’s first acts as president was to issue Executive Order 13993, “Revision of Civil Immigration Enforcement Policies and Priorities”, which articulated the values and priorities for the Administration in its application of immigration laws.
That same day, then-Acting Secretary of Homeland Security David Pekoske issued a memorandum that called for a review of immigration enforcement policies, set interim priorities, implemented a 100-day moratorium on certain removals, and rescinded memoranda issued by the prior Administration.
Subsequently, ICE Acting Director Tae Johnson issued a memorandum that laid out three priorities for immigration enforcement, which inform the more recent memorandum for ICE prosecutors.
These priorities are:
- National security
- Border security
- Public safety
The new guidelines for discretion appear to be broader than similar guidelines published under the Obama Administration and suggest that the Biden Administration will take a thoughtful approach to immigration enforcement.
To this effect, the memorandum cites a decision by the Executive Office for Immigration Review (EOIR), which states:
Immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.
What this means for the immigrant community
It should be noted that the new policy encourages ICE prosecutors to exercise their discretion. This is not a binding order to dismiss cases, or to refrain from prosecuting low-priority cases altogether.
That being said, this high level provides a vehicle for ending prosecution in numerous non-priority cases. It builds on earlier guidance that instructs ICE enforcement officers and agents to obtain supervisory approval before carrying out enforcement actions in non-priority cases.
This type of policy reduces the dangers undocumented immigrants and their family members will face in the United States. It reduces the fears of undocumented parents brining their children to school, of undocumented crime survivors reporting crime to the authorities, of undocumented pregnant women going to the hospital to give birth.
It allows immigrants to more freely participate in and contribute to their communities. It affirms the humanity of undocumented immigrants and the important contributions they make to the United States.
From a legal perspective, these policies will bring an end to the prosecution of many deserving and hardworking individuals. They will also reduce the risk of applying for immigration status.
Prior to this policy, many individuals whose immigration applications had been denied would be sent to removal (deportation) proceedings. This discouraged many from seeking benefits to which they may have been entitled.
We anticipate that many of those who are currently facing detention or deportation in immigration court will have their cases dismissed if they meet any of the criteria for dismissal listed in the new memorandum.
Contact a New Orleans immigration attorney
These are very positive developments, and our team can assist you in presenting your case for dismissal.
The ICE Office of Principal Legal Advisor strongly encourages individuals in court to make their requests for an exercise of discretion, and we can help you do so.
We’re also here to help if you want to fight your case in immigration court so that you can get a status that gives you long term protection and benefits, such as the ability to petition for family members or get work authorization.
Unfortunately, although they can protect you from deportation, dismissal and prosecutorial discretion don’t provide these long-term benefits.
Immigration law is still quite complex, and it’s important to have an experienced and skilled guide to help you make the best decision and present the best case in your immigration case.
At Pelton + Balducci, our team has deep experience with deportation defense, and have been helping clients fight these types of cases for decades. Contact us today to schedule a consultation and discuss your case.
