Biden relaxes rules on prosecutorial discretion

In another big win for immigrants, the Biden administration has relaxed its rules on pursuing deportation cases as it grants more flexibility for ICE (Immigration and Customs Enforcement) attorneys in deciding whether cases are to be dropped or maintained. In a memorandum released by the Chief Attorney of ICE on May 27, 2021, prosecutors can now consider dismissing cases for immigrants who have been long time greencard holders, elderly, pregnant, have a serious health condition or have been in the US from a young age. This is a dramatic shift away from the former administration's aggressive emphasis on deportation and removal proceedings.  While this is not a wholesale dismissal of cases, this latest guidance provides a tremendous opportunity for immigrants who have pending immigration court proceedings to request ICE attorneys to review their cases and ultimately ask for its dismissal.

This memo also helps in declogging the immigration docket that has led to wasteful and inefficient use of everyone's valuable resources - that of the court, the government and the immigrants. In this way, the government can focus more on deporting immigrants who are hardened criminals or those who pose threats and danger to national safety and security. Low level offenders or those whose only violation is perhaps they overstayed or were out of status, can now at least be given an opportunity to have their cases potentially dismissed especially when they are eligible to the requirements of the memo as well as to the discretion of the ICE attorney. Those who have close family ties in the US, are studying or, working, a victim or witness in a criminal action, contributions to the community, membership or has a family member in the military and other humanitarian factors will all be factored in as the ICE attorney exercises his discretion.

According to the Chief ICE Attorney, " 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 in administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence."

As I have noted in the opening line, this is a big win for immigrants. Not only those who are directly involved in immigration proceedings but also their families. In a few months since his inauguration, Mr. Biden has ushered in quite a number of pro-immigration policies that have vastly opened doors of opportunity for those who have seemed to lose hope. Of course, he can only do so much as what his limited presidential powers can allow. But so far, on a divisive issue such as immigration, he has shown his willingness to spend political capital when it could have been easier to use it in other major legacy-building endeavors such as infrastructure or social security reform.

In practical application, if you or you know someone who has a pending removal or deportation proceedings in court, contact your immigration attorney and discuss this matter with him / her. Depending on your personal circumstances, it may or may not be to your advantage if you get your case dismissed.  Sometimes, a case is best settled through a court decision as it may grant you some benefits or status not attainable through a mere dismissal of your case.