Days after he took office, President Joe Biden started moving to reverse his predecessor’s immigration policies. One key step came at the end of May: Senior Immigration and Customs Enforcement officials issued a memo ordering immigration prosecutors to postpone or drop cases against immigrants judged to pose little threat to public safety, a decision that could ultimately affect more than 100,000 people facing deportation.
A ProPublica survey of more than a dozen lawyers across the country, however, along with documents circulated by several local ICE offices, shows that implementation of that guidance has been spotty, with many prosecutors proceeding with exactly the sorts of deportation cases the new rules are intended to prevent.
In New Jersey, an 18-year-old from Honduras with no criminal convictions was ordered deported the day after the memo was issued. In Chicago, officials have said they aren’t using the email address posted on their office’s website to receive requests for reconsideration under the new approach. And no prosecutor’s office has agreed to review its cases to identify and contact immigrants who could be helped by the new policy — despite the May memo saying they had an “affirmative duty” to find such cases.
The policy is grounded in individual prosecutors’ discretion to drop deportation cases they view as less important. It’s a policy carried out largely in secret. Prosecutors don’t have to offer any reasons for denying a request, and their decisions can’t be appealed. With no way to understand the rulings or ask for a review, immigrants and their lawyers say, the program can look a lot like arbitrariness.
At worst, the shaky rollout of the administration’s agenda highlights a paradox of making “discretion” a guiding principle: there’s nothing requiring officials to exercise their authority in a uniform way. It’s possible that these are simply initial missteps, which will be rectified when Homeland Security Secretary Alejandro Mayorkas issues final guidance, expected in August or September. But in the meantime, the deportation orders keep coming.
Yenser Rivera Sabillon, 18, was ordered deported by an immigration judge on May 28. A day earlier, the principal legal advisor at Immigration and Customs Enforcement had issued new instructions encouraging attorneys to postpone or even dismiss cases for many immigrants who do not fit into priority categories, especially those who, like Rivera, have pending visa applications.
But the instructions did not become public for 10 days after they were issued. And the prosecutor did not inform either the judge in Rivera’s case or his lawyer about the new guidance, so neither had a chance to ask ICE whether it would support a postponement.
“Their unwillingness to follow the guidance, as it is written, means that it will just continue to hurt immigrants,” said Sophia Gurulé of the pro bono defense organization Bronx Defenders.
Biden, like his Democratic predecessor Barack Obama, has tried to curb deportations of immigrants living inside the U.S. by urging prosecutors to use their discretion. The idea is based on the assumption that the government has neither the resources nor desire to deport every unauthorized immigrant living in the U.S., so immigration agents — and prosecutors — need to pursue certain immigrants as priorities and leave others alone. It’s both a strategy of compassion (providing a reprieve to some immigrants who could ultimately become U.S. citizens under the immigration-reform bills both presidents have supported) and one of triage (reserving scarce resources for removing people with serious criminal records and recent border crossers). The need for triage can be seen in the immigration courts’ chronic backlogs, which began during George W. Bush’s administration and grew under Presidents Obama and Trump. Today, the typical wait to adjudicate a deportation case is over 2 1/2 years.
A similar program launched by Obama took about 75,000 immigrants off the deportation track, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.
The analysis showed that from 2013 to 2016, about 9% of all cases resolved in immigration court were closed as a result of the Obama administration’s policies of prosecutorial discretion. If prosecutors were to follow the new guidance and evaluate all of the 1.3 million cases currently in the court backlog, a 9% rate of relief would give roughly 120,000 immigrants a reprieve to stay in the U.S.
Biden’s policy isn’t identical to Obama’s, which instructed prosecutors to table cases indefinitely but not to dismiss them entirely. The Biden policy recommends temporary postponement in large numbers of cases — essentially, for anyone without a serious criminal record — and, in certain narrower categories, tells prosecutors to dismiss cases against immigrants outright. A dismissal doesn’t grant legal status, or even a work permit, but it prevents a future administration from simply putting the case back on a judge’s calendar.
Officials acknowledge that policy memos are closer to guidelines than rules. “The discretion delegated to individual immigration officials is a hallmark of our immigration system, but those officials are ultimately bound by the laws passed by Congress, which is in the best position to set categorical policies on which noncitizens are subject to removal and which are not,” ICE told ProPublica in a written statement in response to questions.
It can be impossible to tell if a federal officer is violating a policy or simply exercising discretion, making it hard to hold officials accountable for their decisions. It took until 2014, for example, for the Obama administration to craft a memo that substantially curbed ICE arrests. But lawyers say Obama’s court policies were largely uniform across the country. “During the Obama years, you could get administrative closure on virtually anything,” Charles Kuck, an immigration attorney in Atlanta, told ProPublica. “There wasn’t a fight.”
During Donald Trump’s first weeks in office, the 2011 memo on case management, along with dozens of others, was officially rescinded, and ICE prosecutors were instead instructed to seek deportation in every case.
But the rule of memos has returned under Biden.
On Jan. 20, a memo dictated a broad review of immigration enforcement policy that will form the basis of Mayorkas’ final guidance. Another memo on Feb. 18 gave clearer instructions about who should be arrested and detained while the review proceeded.
The February memo was addressed to all ICE employees — including immigration-court prosecutors. But it didn’t explicitly recommend dismissing or postponing cases in immigration court. For three months after the February memo was issued, ICE attorneys told judges and immigrants they had received no new guidance, and therefore the new policy didn’t apply to them.
Immigrants released from detention were reassigned to the slow-moving general docket, which came to a standstill during the COVID-19 pandemic. But those still detained — including immigrants who appeared not to qualify for prioritization, such as those charged but not convicted of crimes — were still moving full speed ahead in court.
Nearly 250 cases were filed in immigration courts in New Jersey in January. All of the cases where immigrants aren’t in detention are still pending. Of the 30 cases filed that month against immigrants who stayed in detention, only a third are still pending. Sixteen of those immigrants were ordered deported while waiting for Biden to clarify when a deportation case should get dropped. One of them was Rivera — the migrant who lost his case even though Trasviña’s memo giving specific instructions to prosecutors was finally sent the day before his deportation order was issued.
Rivera came to the U.S. at 13 to reunite with his mother, who had left him in Honduras in the care of an aunt (who Rivera describes as abusive) a decade earlier. He had trouble fitting in with his mother’s new family, including two younger sisters he hadn’t known he had, and struggled not to fall in with a bad crowd at school. After a few run-ins with police, resulting in multiple pending criminal charges (including one for auto theft in October 2020), Rivera discovered his longtime girlfriend was pregnant and resolved to turn his life around.
But in January, his older sister called the police on him after an argument. When Rivera was released from jail, he was booked into ICE detention in Essex County, New Jersey.
Initially, Rivera faced serious domestic violence charges. (Rivera maintains no violence occurred.) But his sister recanted, and asked for the charges to be dropped, when she realized he could be deported. Rivera’s criminal charges were downgraded to low-level “disorderly person” offenses and sent to municipal court for resolution. But Rivera stayed in detention, and his immigration court case — in which ICE sought to have him formally labeled an unauthorized immigrant and ordered deported — proceeded.
Rivera’s immigration lawyer, Jordan Weiner, understood that Rivera could qualify for several different kinds of legal status, and applied for him with U.S. Citizenship and Immigration Services, the agency that oversees legal immigration. Under the Obama administration, that alone would have been enough to get his deportation case administratively closed, since he was in line for legal status. And Weiner thought that Rivera’s age and his long relationship with his pregnant girlfriend made him a sympathetic case. But when she asked the ICE attorney if he would support her motion to close the case, he demurred — then filed a strongly worded motion in opposition.
At that point, the Biden administration’s prosecution guidance was circulating among ICE attorneys but had not been publicly issued. It didn’t directly address administrative closure, but it suggested that immigrants who didn’t fit enforcement priorities should at least have their cases postponed. And it said that when deportation seemed particularly cruel or irrational — because an immigrant had a pending application for legal status with USCIS, for example, or was pursuing education — prosecutors should consider dismissing the case entirely.
“If I had known about the memo, I definitely would have made a big deal about it” and asked for the prosecutor to file a new brief, Weiner said. But she didn’t. (In its statement to ProPublica, ICE noted that the memo “specifically contemplated that it would take time to implement” through local field offices.)
Rivera was not the only immigrant to fall into the gap between memos and on-the-ground reality.
“What we’ve seen in practice,” said Gurulé, is that ICE officials “act like they don’t understand what the interim guidance means at this time” while they wait for Mayorkas’ review to be completed. Nearly two months after the memo was circulated, many local offices still haven’t issued written operating procedures. (ICE told ProPublica that it reviewed every field office’s procedures, and that each office held meetings with local stakeholders, including immigration attorneys, to discuss the new policy.)
Local procedures are already undermining a key principle of the May memo: that immigrants shouldn’t have to request prosecutorial discretion in order to receive it.
“In the absence of an affirmative request for prosecutorial discretion,” Trasviña wrote, “Attorneys should nonetheless examine the cases to which they are assigned to determine independently whether a favorable exercise of discretion may be appropriate.This affirmative duty to evaluate assigned cases is central to an OPLA attorney’s job.”
In its statement to ProPublica, however, ICE asserted that the memo didn’t direct “a blanket affirmative review of every case.” Instead, ICE said, it referred to a “review of requests” made by immigrants or their attorneys.
Immigration lawyers practicing in ten different courts around the country said in interviews that their local ICE field offices had either implied or explicitly stated that the only way to be considered was to submit a written request. ICE headquarters set up dedicated email addresses for each field office to receive these requests; in Chicago, however, prosecutors are requiring lawyers to file their requests to a separate dropbox — though at least one lawyer sent a request to the dormant email inbox and only discovered afterwards it had gone unread.
Written Standard Operating Procedure documents circulated by prosecutors’ offices in Los Angeles, Seattle and Chicago, viewed by ProPublica, all put the onus on immigrants themselves (or their lawyers) to ask for favorable discretion.
“OPLA Seattle attorneys will neither provide legal advice to pro se noncitizens nor prompt them to request dismissal of their immigration proceedings,” the Seattle guidance says. “Thus, it will be incumbent upon pro se noncitizens to affirmatively request PD.”
“I wonder why they don’t have time to take stuff off their docket and make themselves less busy,” Memphis attorney Lily Axelrod said. The ICE spokesperson told ProPublica that relying on requests “lead to more successful outcomes of relief for the individual non-citizen” because not all immigrants want their cases dismissed.
Even if an immigrant or lawyer files an extensively argued and well-documented request, ICE may reject it without further explanation. (In one case in New York, ICE responded to a 600-page filing with a single-paragraph denial.) None of the ICE field offices ProPublica examined have a way to appeal an ICE prosecutor’s decision; in Memphis, lawyers were told that there would not be any official process to request a second opinion or appeal a decision, but that lawyers were free to unofficially approach a senior attorney at the office if they had a complaint.
ICE noted to ProPublica that “noncitizens who do not receive prosecutorial discretion remain entitled to many substantive and procedural safeguards that exist in formal removal proceedings.”
To advocates, the lack of accountability threatens to undermine Biden’s promises of fundamental systemic change. “People need to know what the bases are for what you’re doing and why you’re doing it that way,” said Sirine Shebaya of the National Lawyers Guild.
It’s possible that Mayorkas’ recommendation may address some of these issues. Additionally, ICE told ProPublica that the agency’s leadership and head prosecutors “are actively monitoring the implementation of the guidance memo so trends can be examined and processes improved as is necessary.”
But the power given to prosecutors, and the lack of redress for immigrants, has already become a key part of the Biden administration’s defense of its policy against legal challenges.
In a brief filed in April in response to a lawsuit by the state of Texas challenging Biden’s changes to arrests and detention, the Department of Justice stressed that “the framework provides that ICE will focus its attention on the most serious and pressing cases for enforcement, while calling on all ICE personnel to ‘exercise their discretion thoughtfully’ with regard to other cases.” The same brief argues that the Biden agenda is legal because immigrants can’t rely on the memos to get relief: “No noncitizen can invoke either memorandum to evade an enforcement action. Indeed, the Secretary retains the discretion to change or abandon these policies at any time.”
Furthermore, the changes so far have simply underlined that the two justifications for prosecutorial discretion — compassion and triage — can be at odds. Because immigration-court cases can end with immigrants receiving legal status, dismissing a case can close that door. In Atlanta, ICE attorneys unilaterally asked for dismissal in at least one case in which the immigrant felt confident they’d win legal status. In Las Vegas, a lawyer who requested that a case get indefinitely closed so that the immigrant could keep her work permit was offered a dismissal instead. In both cases, lawyers expressed frustration that ICE’s actions would prevent their clients from being allowed to work and live in the U.S. legally — forcing them to remain unauthorized.
Focusing too much on minimizing the court backlog, Shebaya worried, could lead to “a rush to close out a bunch of dockets without considering, what are the interests of justice in this case?”
There’s no way to challenge the decision of an ICE prosecutor to keep fighting an immigrant’s case. But the Biden administration has created such a process to challenge ICE’s decision to keep an immigrant in detention. And that system actually worked for Rivera.
When ICE notified Weiner in writing that it intended to keep Rivera detained pending his appeal, she submitted the request to a central inbox for “case review.” Nine days later, on June 24, ICE replied: “It appears your client may no longer meet the agency’s current priorities.” Rivera was released the next day.
Rivera returned to his job as a restaurant dishwasher, and enrolled in three summer school courses, putting him on track to graduate from high school next year. He has attended a baby shower for his son, due at the end of July, and is planning to move in with his girlfriend’s family once she gives birth. He feels “much calmer,” he told ProPublica. But right now, he’s still living under the deportation order, even though its enforcement is on hold while the court reviews his case. The Board of Immigration Appeals takes months to evaluate immigration-court cases, and the fact that ICE’s policies have changed isn’t necessarily a reason to reverse the case.
In a best-case scenario for Rivera, his court case will drag on for months before it reaches the conclusion Weiner asked for back in May: a temporary closure while his visa applications are pending (which is likely to take at least a year). Meanwhile, the case is just another file in the backlogged court system — another file that the Biden administration will have to review later, if it is interested in reconciling the gap between memos from headquarters and actions in court.