Memo directs ICE prosecutors to dismiss non-priority cases—04-08-22
Immigration news, in context
This is the 119th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine a new policy instructing the government’s immigration prosecutors not to bring new cases, and dismiss existing cases, for people not included in the administration’s prioritization categories.
In Under the Radar, we look at the DHS inspector general’s efforts to block acknowledgement of staff misconduct.
In Next Destination, we discuss a state-led lawsuit attempting to block the government’s termination of the Title 42 order.
The Big Picture
The news: ICE prosecutors have been directed to consider dismissing cases for individuals who don’t fall under the Biden administration’s prioritization guidelines for internal enforcement, a move that could potentially clear hundreds of thousands of pending cases out of the immigration courts.
What’s happening?
While Immigration and Customs Enforcement is primarily known to the public by its Enforcement Removal Operations component—the agents who are going out and detaining people on immigration violations, holding them in detention, transporting them to court, and conducting deportations—this is only one of the agency’s functions. Technically, ICE is made up of five divisions, two of which are managerial or internal: the Management and Administration directorate is pretty self-explanatory, and the Office of Professional Responsibility is its version of internal affairs, tasked with protecting the agency itself as well as investigating potential wrongdoing.
That leaves three enforcement-focused divisions. Homeland Security Investigations, like ERO, is composed of federal law enforcement agents with an operational focus, except instead of being tasked primarily with going after immigration violations, it is designed to investigate crimes like counterfeiting, human trafficking, and smuggling (though it has certainly not been without controversy of its own; recently, for example, it joined the long tradition of federal agencies getting caught illegally bulk-collecting personal information).
Then there’s the Office of the Principal Legal Advisory, which is composed not of agents but lawyers. While its title might suggest that their function is to provide legal advice to the agency, it’s actually a prosecutorial office, similar to a self-contained district attorney for immigration violations. This is the division charged with prosecuting cases in immigration court, representing the government in its efforts to deport people. For those keeping score at home, yes, that means that the arresting agents, jailers, and prosecutors in immigration court are not only all part of the executive branch, they’re all part of the same Homeland Security sub-agency. The immigration judges are not, instead forming part of the Justice Department’s Executive Office for Immigration Review, meaning that everyone except the respondent and their lawyer is an executive employee. This, we’re told, is due process.
The memo in question was sent by Principal Legal Advisor Kerry Doyle to all OPLA attorneys. It’s 17 pages long and studded with legalese, but what it boils down to is a directive for attorneys to utilize their prosecutorial discretion to essentially stop pursuing cases that don’t fit into the categories delineated in Homeland Security Secretary Ali Mayorkas’ ICE prioritization memo from late last year. For the full breakdown, you can read our edition on it linked above, but the nuts and bolts are that it’s an effective return to Obama-era guidelines that established three types of enforcement priorities: people deemed threats to national security as most serious, those deemed a threat to public safety as the next tier, and then people deemed a threat to “border security,” i.e. recent border crossers.
Everyone else is deprioritized. This doesn’t mean that they categorically can’t be arrested and put in removal proceedings, but absent aggravating factors like criminal convictions, the immigration enforcement apparatus writ large is meant to more or less leave them alone. Despite some targeted legal setbacks, notably a federal judge’s decision to force the government to continue arresting and detaining certain types of immigrants with some criminal contact, the bulk of the Mayorkas memo remains in place. However, it dealt only with one half of the equation—initial enforcement—and not the subsequent removal proceedings. This memo addresses that second half.
Like the enforcement memo, it doesn’t categorically prohibit attorneys from pursuing cases that don’t strictly and obviously fall into the stated tiers, but urges them to avoid doing so if possible. It stresses that, while “OPLA attorneys represent DHS and cannot provide legal advice to, or legal advocacy on
behalf of, a noncitizen,” they are in a position to “endeavor to do their part to improve and enhance the removal process by using their knowledge and authorities so that, to the greatest extent possible, every noncitizen has the opportunity to have their case fairly heard and correct outcomes are achieved,” notably including when respondents are pro se, i.e. without legal representation.
While this might all be read as a statement of moral priorities and political preferences—and indeed, is already being railed against by the usual “open-borders Biden” types—it is fundamentally a practical decision. The immigration court backlog has grown to 1.7 million pending cases, a dramatic uptick from just a few years ago. Hearings are being scheduled out years in advance. An American Immigration Lawyers Association-sponsored analysis and set of recommendations issued last year estimated that, even with a narrower set of criteria for case dismissal, the government could clear out 700,000 low priority cases.
Here, the directive is not just retroactive, but forward-looking: attorneys are instructed to consider never issuing charging documents known as notices to appear (NTAs) in the first place, keeping nonpriority cases from ever being filed. (For cases started after the Mayorkas memo’s November 29, 2021 issuance, they are told to assume ERO agents already correctly prioritized the arrest). While OPLA attorneys have long used their discretion to administratively close cases to take pressure of the backlog—essentially taking them off the calendar and leaving them in a state of limbo, not active but also not resolved—this memo specifically recommends outright dismissal, going so far as to say that “OPLA strongly prefers dismissal of proceedings as a discretionary tool in nonpriority cases.”
There are a few other items in the memo relating, for example, to bond proceedings (reminding attorneys that they can take into consideration evidence that flight risk or dangerousness concerns are mitigated to agree to bond or other forms of release from detention) and the appearance of OPLA attorneys in specific hearings (giving administrators the ability to waive Homeland Security’s presence at certain hearings where it is deemed unnecessary). The whole thing is slated to go into effect on April 25.
How we got here
One of the biggest misconceptions about the immigration enforcement system is that all cases are treated equally under the law: either you’re here “legally” and you can stay, or you’re here “illegally” and the government will ensure that you don’t. In actuality, the entire immigration and deportation system is highly discretionary—which also means priorities can change with the stroke of the pen or the introduction of a new presidential administration.
For example, the previous administration instructed Enforcement and Removal officers to arrest “all removable aliens” encountered in the field, a shift from the more limited enforcement priorities implemented during the final years of the Obama administration. A February 2017 DHS memo outlining the Trump administration’s enforcement priorities stated that DHS would “no longer exempt classes or categories of removable aliens from potential enforcement.” That same memo also limited the use of prosecutorial discretion, which it said “shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.”
As we explained above, ERO is just one division within ICE. While ERO agents are the ones who apprehend and arrest people for suspected immigration violations, OPLA attorneys are the ones who pursue charges against people in deportation proceedings. (To be clear, immigration courts are not criminal courts, despite having prosecuting attorneys and—for those who can get them—defense attorneys.) Trump’s decision to expand ICE’s enforcement priorities thus expanded the amount of cases OPLA attorneys were required to take on.
A 2018 analysis by the American Immigration Council found that Trump’s expanded enforcement priorities had the intended effect: more arrests and more deportations. The Trump administration didn’t just reduce discretion at the enforcement and prosecutorial levels; the Department of Justice, which oversees the agency that runs the federal immigration courts, also limited judicial discretion. In 2018, then-Attorney General Jeff Sessions ended judges’ ability to administratively close cases and forced the reopening of cases that had been closed. Immigration judges had previously relied on administrative closure as a docket management tool. For non-citizens in deportation proceedings, administrative closure was a way of temporarily having their case postponed—effectively letting them stay in the United States indefinitely, albeit without legal authorization. Trump’s various attorneys general also implemented policies limiting the grounds under which migrants could be granted asylum, further limiting judges’ discretion.
Discretion exists at every level of the immigration system, at least theoretically: agents can be directed not to arrest certain people, attorneys can be directed to not prosecute certain cases, and judges can administratively close certain cases, in addition to using their discretion to rule. These discretionary abilities aren’t entirely humanitarian: they’re ultimately an admission that, despite the vast government funds allocated towards immigration enforcement each year, the government has limited resources and needs to choose its battles wisely. Trump’s dismantling of any enforcement priorities is one of the reasons the backlog of immigration cases has gotten so bloated. When he took office, there were roughly 500,000 pending immigration cases; by the time Biden was sworn in, the immigration court backlog had surpassed 1.3 million.
OPLA’s new priorities mirror those laid out to ERO officers in October, which are similar to those implemented under the Obama administration. In a 2010 memo, the ICE deputy assistant secretary said the agency should focus its “limited enforcement resources” on:
people who pose a national security or public safety threat (including people “engaged in or suspected of terrorism or espionage,” people convicted of certain crimes or subject to outstanding criminal warrants, and people convicted of aggravated felonies)
people who had recently entered the U.S. without authorization
and people who “are fugitives or otherwise obstruct immigration controls,” including those who had already been ordered deported and those who “obtain admission or status by visa, identification, or immigration benefit fraud.”
The Obama administration implemented its new prioritization scheme in 2014. It was largely similar to the above, with some differences. Under the 2014 directive, ICE’s priorities were:
people who posed a threat to national security, border security, and public safety;
anyone convicted of three or more misdemeanors (aside from minor traffic violations and a few other exceptions); one “significant misdemeanor,” such as domestic violence, sexual abuse, burglary, unlawful possession of a firearm, drug distribution or drug trafficking, or driving under the influence;
anyone who entered the U.S. after January 1, 2014; and those who have “significantly abused the visa or visa waiver programs” anyone who had already been issued a deportation order on or after January 1, 2014, aside from those who qualify for asylum or another form of relief.
Ultimately, these directives weren’t binding. In 2016, the Marshall Project found that around 60 percent of the 300,000-plus deportations that had taken place since the 2014 memo went into effect involved people whose only conviction was immigration-related, or people who had no criminal convictions at all. Less than 20 percent of those deported had “potentially violent convictions.”
What’s next?
This all might seem like a kind of obscure procedural change, but it is a hugely significant shift in the government’s approach to removal proceedings. All told, between cases that could be dismissed and cases that won’t be filed in the first place, we could be looking at around a million removal proceedings that just won’t go forward this year. That’s a million people for whom the looming threat of deportation will simply disappear; not permanently, of course, as the termination of a removal case doesn’t in itself confer status and a proceeding could always be reopened, but it does take away the imminent threat of removal.
Paired with a new rule, slated to go into effect in late May, that would transfer initial jurisdiction of asylum claims made at the border from EOIR to USCIS, these policy shifts will take a lot of pressure off the immigration courts, which in turn will enhance due process. Administrators and lawyers won’t feel the need to emphasize filing and clearing ever more cases, meaning that even those cases which aren’t dismissed won’t be in the pressure cooker of an overworked system.
It is almost certain that the administration will be sued over the shift, likely by the same groups of states that have sued it over practically every immigration shift so far. Their arguments will be similar to those deployed as part of, for example, litigation attempting to maintain or expand Title 42, or the lawsuit trying to narrow the Mayorkas priorities: that any effort to in any way limit the number of people subject to detention and deportation will incur state costs for public safety and services, that it is a violation of immigration law, and that it is not in compliance with administrative procedure. Our money is on Texas Attorney General Ken Paxton. Politically, it is almost certain to generate some continued outrage on the right, and don’t be surprised if you start hearing a lot about “Biden’s mass amnesty for illegal aliens” or something of that sort on Fox News and other such outlets in the near term.
One reason that the policy specifically emphasizes dismissal over administrative closure is probably to avoid a situation like Sessions’ forced reopening of closed cases. Closed cases can just be put back on the calendar, but dismissed cases are much harder to simply reopen. Once these steps are taken, they will be difficult to undo, though it does ultimately leave a lot of people still in some kind of limbo. They will no longer be in removal proceedings, but won’t have any additional status to show for it.
Under the Radar
Homeland Security inspector general hid reports of misconduct
According to documents obtained by the Project on Government Oversight and corroborated by The New York Times’ Chris Cameron, DHS Inspector General Joseph V. Cuffari and some of his top aides removed accounts and analysis of misconduct by officers across Homeland Security agencies from draft reports detailing internal investigations into sexual harassment and domestic violence, the former of which was never published at all.
Among the findings that were excised were the fact that over 10,000 employees of Customs and Border Protection, Immigration and Customs Enforcement, the Secret Service and the Transportation Security Administration reported experiencing sexual misconduct at work, and that these agencies had approved large payouts to settle such complaints without investigating or disciplining those responsible. ICE had the largest volume of misconduct allegations.
The investigations also found at least 30 cases in which armed agents had been found to have engaged in domestic violence and were then allowed to stay and keep their firearms, including a case where a CBP assaulted two different women, including his wife, over less than two years and received just a 15-day suspension. Cuffari, a Trump appointee who has repeatedly interfered with his staff’s efforts to investigate DHS personnel, remains on the job.
Next Destination
Three states challenge Biden administration’s attempt to lift Title 42 in court
Missouri, Arizona, and Louisiana have filed a lawsuit against the Biden administration, claiming its effort to end Title 42 will pose “an imminent, man-made, self-inflicted calamity” and will cause the immigration system to devolve “into an unmitigated chaos and catastrophe.”
The Trump administration first invoked Title 42 in March 2020. Ostensibly a public health measure, the statute allows public health officials to deny entry to anyone whose presence in the U.S. could contribute to the introduction or spread of an infectious disease. In practice, though, Title 42 has been used to turn away asylum seekers and other migrants en masse at the border. There have been several documented instances of migrants being expelled under Title 42 after testing negative for Covid-19, which contradicts the supposed public health rationale behind the policy.
Biden has kept Title 42 in place thus far despite his administration initially claiming it would start phasing the policy out in July 2021. Last week, the CDC announced that it would end Title 42 on May 23. Since last summer, the agency had been reviewing Title 42 every 60 days.
The suit claims the administration’s plan to end Title 42 is “arbitrary and capricious,” a phrase that has become common in immigration-related lawsuits over the past four years. It argues that the administration violated the Administrative Procedure Act, a law prohibiting capricious rule-making. It’s possible that the lawsuit will force the administration to continue the policy; a judge could prohibit the administration from lifting Title 42 while litigation continues.