The Biden administration directed Immigration and Customs Enforcement (ICE) attorneys to consider dismissing deportation cases that are not “priorities.” So far this has not been completely clarified as to what constitutes a “priority.” Historically it’s folks who are considered a risk to public safety aka people with a criminal history and also “recent arrivals.” This was the standard under the Obama administration for prioritizing deportation. That said the current plan is far more reaching and substantial than anything ever done in the immigration court system.
The recent ICE memo is the latest in a series of policy changes that have marked a departure from the Trump administration’s aggressive enforcement measures. It’s also an attempt by the administration to reduce the immigration court backlog that is estimated at nearly two million cases. The American Immigration Lawyers Association has estimated that over 700,000 cases in the backlog may be considered low priority cases.
The timing of this memo and policy is concurrent with an expected surge in border crossings, as a result of the repeal of the Trump administration public health order on May 23 that allowed Border Patrol to turn away most migrants.
The memo stems from Homeland Security Secretary Alejandro Mayorkas’ guidance last year to prioritize certain immigrants for arrest and deportation. The priorities outlined by DHS are threats to national security, public safety and border security. Recent border-crossers, for example, are a priority under the guidance.
“Prosecutorial discretion” – the utilization of immigration court resources for certain immigrants more “deserving” of deportation – has been the focus of both the Obama and Biden administrations. The Biden administration began to prioritize some cases last year – particularly those of individuals with some sort of immigration solution or remedy – albeit maybe many years in the future in order to reduce the immigration court case load. The current plan is a very aggressive move to dismiss proceedings against virtually everyone who has been in the U.S. as long they have no criminal history and are not a recent arrival. It’s a very realistic and just approach to a vexing issue that most first world countries are currently grappling with.
One of the big challenges for immigration attorneys and litigants is retaining or obtaining some sort of minimal documentation after court proceedings have ended. May folks with an immigration court case pending are afforded work authorization pending the resolution of litigation. If their court matter is terminated out right they will lose this benefit. The courts sometimes will effectively close a matter “administratively,” meaning the matter is still pending without a future hearing date, to allow folks to maintain a work document. Time will tell if this is part administrative policy going forward.