Posted on June 8, 2021

Biden Gives ICE Attorneys More Discretion to Drop Immigration Cases

Rebecca Beitsch, The Hill, June 4, 2021

The Biden administration is giving immigration prosecutors more discretion over which cases to pursue or even drop, a move that could limit the new cases funneling into the overwhelmed immigration court system.

A memo to Immigration and Customs Enforcement (ICE) prosecutors allows the agency’s lawyers to drop cases against green card holders and those who are elderly, pregnant or have serious health conditions or have been in the U.S. from an early age, according to a memo obtained by The Hill.

It also advises lawyers to weigh other “compelling humanitarian factors,” like whether a defendant is a caregiver or the victim of a crime.


“Prosecutorial discretion is an indispensable feature of any functioning legal system. {snip},” chief ICE attorney John Trasviña wrote in the memo, which was first drafted May 27.

The memo also encourages lawyers to use their discretion “at the earliest point possible.”


The move comes as the immigration court backlog has swollen to 1.3 million cases {snip}


Trasviña encouraged ICE prosecutors to consider mitigating factors, like whether the defendant has strong family ties in the U.S., their work history, or other contributions to their community. Cases can also be dismissed if a defendant serves in the military or has a family member who does.

They are also asked to consider whether someone might gain legal status through other methods, particularly since many people with cases before the immigration court have also applied for some sort of status to remain in the country through U.S. Citizenship and Immigration Services.

The memo is in line with the interim enforcement priorities handed down to ICE officers in the field earlier this year, encouraging them to pursue only those with serious criminal records and requiring officials to seek permission from a higher up before pursuing anyone not meeting those standards.