ICE Attorneys Granted Discretion To Close Cases For Some Immigrants

Posted on 06/14/21

The Trump administration was highly effective at prolonging immigration court delays and implementing policies that were focused on diminishing the ability of immigrants to receive timely court appearances while impeding the execution of justice. President Trump politicized many of the federal bureaucracies functions, for the matter of gaining political favor amongst his supporters. Our overwhelmed immigration court system saw a doubling of migrants on immigration court dockets because of Trump’s deliberate actions to undermine the courts. The extraordinary backlog jeopardizes the integrity of our immigration court system and is fundamentally inhumane. Fortunately, then-candidate Joe Biden promised to take expeditious action to reform and streamline the immigration process. Now, as the forty-sixth president, he has set forth a strategic and focused effort to dismantle former President Trump’s heinous immigration policies. Prioritizing humane resolutions that are just and equitable for all immigrants is at the forefront of President Biden’s efforts to rebuild our fractured immigration process. Such initiatives are to the benefit of the nearly eleven million undocumented immigrants currently residing in the U.S. and those seeking to legally immigrate to the United States.

Secretary Alejandro Mayorkas is leading the Biden administration’s immigration efforts at the Department of Homeland Security. Under his leadership, sound practices have been demonstrated at all levels at DHS. Earlier this year, Immigration and Customs Enforcement acting director Tae Johnson issued an interim guidance on Immigration enforcement and removal policies and priorities that are in line with the administration’s focus. These guidelines are focused on expediting the deportation of immigrants based on key requirements and oversight. As a complement to the February 18th memo, hereby the “Johnson Memo,” a new memo released on May 27th, called for additional changes to the decision-making process at ICE. Specifically, on what cases ICE Prosecutors should pursue and others moved for dismissal. The changes are significant as it will prioritize agency resources while aiding in alleviating the court backlog.

The May 27th memo directed to all Offices of Principal Legal Advisor attorneys cited that prosecutorial discretion is “an indispensable feature of any functioning legal system. The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department’s mission of administering and enforcing the immigration laws of the United States smartly and sensibly that promotes public confidence.” It is clear the mission of DHS is to no longer fall back on the past administration’s efforts to conduct “prompt proceedings” but to ensure a fair execution of justice at the discretion and with all factors accounted for by ICE prosecutors.

The Department of Homeland Security will continue to execute its discretion as it relates to prioritizing deportations. The February 18th interim memo, also considered the Johnson memo (named after Tae Johnson) defined specific removal deportations that ICE officers should follow including:

  • When to execute a final order for removal
  • When to issue a detainer for an undocumented immigrant or to assume custody of that individual
  • When to issue or cancel a “Notice to Appear”
  • When to offer deferred action or parole
  • When to detain an immigrant or release them under certain conditions
  • When to question, stop, or arrest an undocumented immigrant
  • Deciding where to focus resources on administrative violations or conduct

The following are key priorities in the execution of deportations under the Biden administration:

  • Prioritizing Deportations of National Security Threats
    • The individual has engaged in terrorism or other terroristic activities
    • The individual has or continues to engage in espionage against the United States
    • The deportation or removal of the individual will improve the national security of the United States
  • Prioritizing Deportations of Border Security Threats
    • Not physically present in the United States on or before November 1st, 2020
    • Removal priority if the individual was apprehended at a port of entry on or after November 1st, 2020
  • Prioritizing Deportations of Public-Safety Threats
    • An individual convicted of an aggravated felony
    • An individual’s criminal activity and history will be factored in the decision
    • An individual that is not 16 years of age or younger that has actively and willingly participated in criminal gang activities or an individual convicted of gang-related offenses

Even with the above criteria not being met, an immigrant is still subject to removal. Written justification as to why an immigrant(s) should be deported is required to be presented to a supervisor first. If the above criteria are met, officers do not need to ask for pre-approval by a supervisor. As these are presumed priority cases, ICE officials still maintain control of deeming certain individuals a National Security, Border Security, or Public Security threat.

So what exactly is Prosecutorial Discretion

According to The Role of Prosecutorial Discretion in Immigration Lawby Shoba S. Wadhia, prosecutorial discretion officers can choose whether or not to charge an immigrant with a crime or not. Not only does prosecutorial discretion extend the power of Immigration and Customs Enforcement to pursue individuals or groups of immigrants, but it also provides ICE with the authority to select “whether or how” it chooses to enforce prosecutorial discretion. In essence, ICE is handed over control when it comes to the decision-making process, leading to humane and ethical deportations that uphold the rule of law. ICE may utilize prosecutorial discretion to close your case, stopping your deportation, and getting you on the path to securing legalization. The move to exercise prosecutorial discretion furthers the “faithful and just” execution of our countries immigration laws.

OPLA attorneys can excise prosecutorial discretion in proceedings while “exercising considered judgment and doing justice in individual cases, consistent with DHS and ICE priorities.” Prosecutorial discretion ensures ICE follows the guidelines set forth by senior leadership while focusing its financial resources and attention on undocumented individuals who violate the Johnson Memo’s directives.

The memo outlines several circumstances that may warrant the dismissal of deportation proceedings. They include the following:

  • Military service member or immediate family members
  • Individuals that are likely to be eligible for TPS or permanent relief
  • Significant law enforcement or government interest
  • Long term lawful permanent residents
  • Humanitarian factors
  • An individual that is pregnant, elderly, has serious health concerns, is a victim of domestic violence or any other violence, or a minor may be subject to dismissal of removal proceedings

How Important is Immigration Reform?

With 1.32 million immigrants currently in the immigration court backlog, the benefits of any immigration reform are far-reaching. Not only do immigrants welcome vibrant cultures but they aid in our social and economic development. In many cases, immigrants are fleeing countries in despair, where corrupt leadership, violence, and underperforming economies make it necessary for millions of immigrants to flee. Leaving one’s home in search of better opportunities elsewhere is a difficult decision, especially when considering the historical and cultural roots an individual may have in their home country.

The United States has welcomed immigrants of all backgrounds for decades leading the world in humanitarian efforts. Within every family, lies a story behind an ancestor’s path to immigrating to the United States in search of opportunity and securing their American dream. The United States is unlike any other nation in the world. Its liberties and freedoms are enshrined to all its citizens and even its noncitizens. A just and accountable immigration system will have long-lasting effects on the development of our nation. In the past several years, we have seen a flawed immigration system take hold. That is why the actions taken on by the Biden Administration are essential to improving our immigration system. Immigrants deserve their chance to be heard and their rights cannot be disregarded simply because of politics.

Partner With a Connecticut Immigration Attorney

Not sure how prosecutorial discretion may impact your case or if you may be eligible? It may be in your interest to reach out to a skilled Connecticut immigration attorney at The Law Offices of James A. Welcome to ensure you understand the requirements and whether they may apply to your case. As one of Connecticut’s leading and highly-rated immigration law firms, we understand the importance of prioritizing your rights, and that starts with keeping you informed on all matters immigration. Immigration law is complex and constantly evolving with new orders and at times trade-off policies that are common when administrations transition. When you partner with a competent and experienced attorney, you can rest assured knowing that all factors are accounted for and part of our strategy to secure the best possible outcome on your behalf. For nearly two decades, Attorney James A. Welcome has worked tirelessly on behalf of thousands of immigrants in Connecticut, and across the United States. Reach out for qualified, and distinguishable immigration representation.

Each Immigration Case is Different

Attorney Welcome understands that each case is nonidentical and requires an individual approach. That is why our accomplished immigration team carefully analyzes the facts of your case, researching potential hurdles and avenues of advancement. Your initial immigration conclusion provides you with an in-depth and confidential venue to discuss your most pressing questions. Attorney Welcome and his team of attorneys will suggest some possible approaches as it pertains to the specifics of your case while answering your concerns. If you choose to retain our services, you can settle knowing the critical facts of your case will be factored in and taken into account when starting your immigration process. As immigration law is federal law, Attorney James A. Welcome can provide legal guidance to you from anywhere around the country, so you can confidentially join us on a video call from across the country or internationally.

Ready to start your journey with an award-winning legal team? The Law Offices of James A. Welcome is ready to deliver on your behalf. Simply call the office at (203) 753-7300 or start a live chat on our website at We’re available 24/7, so no need to worry. Our Connecticut immigration attorneys are just a call away.