Biden Admin to ICE: Use Prosecutorial Discretion amid Push to Cut Deportations

ICE Enforcement and Removal Operations officers arrest a migrant pending for deportation.

John D. Trasvina, Principal Legal Advisor for Immigration and Customs Enforcement (ICE), directed attorneys to employ “prosecutorial discretion” to apparently reduce the 1.3 million deportation case backlog in immigration courts.

The May 27 memorandum from the former Mexican American Legal Defense and Education Fund (MALDEF) president and general counsel instructs ICE attorneys to consider mitigating factors whether to pursue removal of an illegally present foreign national. Such factors include contributions to the community, compelling humanitarian factors, age, pregnancy, or status as a primary caregiver of a seriously ill relative in the United States.

Attorneys are directed to apply the discretion when deciding to pursue removal before the Executive Office for Immigration Review even if not specifically requested by opposing counsel. When considering any previous criminal activity as the cause for removal, ICE Attorneys are directed to consider:

The extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety.

The current enforcement priority limitations placed on ICE Enforcement and Removal Officers is used as one reason to justify the exercise of prosecutorial discretion. The memorandum seeks to align the pursuit of removal to the arrest priorities used by field agents. That policy, put into place by the Biden Administration, has resulted in fewer monthly arrests since the agency’s inception.

ICE agents have decried the effects of the enforcement priorities memorandum as a dereliction of their responsibility to enforce immigration laws. The limitations under the current administration resulted in the release of criminal aliens who otherwise would have been removed to their home countries.

Although a plan proposed by President Joe Biden through executive order to halt deportations for 100 days was enjoined by a federal court, this move will allow, through policy, a steep reduction in removals before immigration courts.

Randy Clark
 is a 32-year veteran of the United States Border Patrol.  Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.


Please let us know if you're having issues with commenting.