Advocates are expressing skepticism that steps taken by the Biden administration to address the immigration court backlog will have much impact for the more than 1.3 million people waiting to have their cases decided.
Immigration and Customs Enforcement (ICE) announced earlier this month that it was giving its attorneys more discretion to drop cases, a reversal of a Trump-era push to widely seek deportation.
Instead, it directed agency lawyers to weigh how long someone had been in the country and their ties to the community along with other humanitarian factors.
The memo was followed by another notice to immigration court judges late last week pushing them to spur action on backlogged cases where appropriate and respect agreements brokered by ICE lawyers. It’s a directive that could be key for a court system that saw two-thirds of its bench appointed under Trump.
“The memo repeats the word justice several times and says the [ICE] attorneys have an obligation to adhere to principles of justice and fairness in their work which doesn’t mean pushing every possible case or fighting every case in an adversarial posture,” said Greg Chen with the American Immigration Lawyers Association.
Immigration advocates say its implementation by ICE will be key in determining if it will make a difference. More than half of migrants now go unrepresented in the overwhelmed immigration court system and have no guaranteed right to counsel.
Also at issue is ICE’s secrecy around the memo, which was signed May 27 but not publicly shared for more than a week.
“The heart of the memo is a method that attorneys and individuals facing deportation proceedings can use to ask the agency to exercise direction in their cases. This memo and others like it need to be publicly available for people to effectively make use of that process,” said Heidi Altman, policy director for the National Immigrant Justice Center (NIJC).
“In immigration court lives are at stake, family unity is at stake and a lot can happen in a week. People were deported in that week. Families were separated in that week.”
The memo encourages lawyers to use their discretion “at the earliest point possible.”
ICE did not respond to questions about the delay in sharing the memo, its implementation, nor did it supply another guidance document referenced within it.
The memo in theory applies to a wide variety of cases, allowing the agency’s lawyers to drop cases against green card holders and those who are elderly, pregnant or have serious health conditions, have been in the U.S. from an early age, or have ties to the military.
It also tells them to consider whether someone might gain legal status through other methods, particularly since many people with cases before the immigration court have also applied for some sort of status to remain in the country through U.S. Citizenship and Immigration Services (USCIS).
But much of the burden for requesting discretion falls not on ICE lawyers, but the migrants moving their way through the court system.
“There is the enduring issue where by and large the people that have to navigate detention and removal don’t have right to appointed counsel and the vast majority aren’t represented by an attorney,” said Jorge Loweree, policy director at the American Immigration Council.
“This outlines a process to seek and request discretion that in many ways will be unavailable to people that don’t have an attorney, that don’t have a foundational understanding of the detention and removal system, and therefore it will be out of reach for many people that can and should benefit from it.”
When it comes to those who are already sitting in detention, the memo largely advises ICE attorneys to defer to officers in the field on whether someone should remain in custody while they await their case.
“The problem is that ICE is an enforcement agency whose knee-jerk reaction over the past more than a decade now is increasingly to detain people even when it’s just not necessary in the case. And is this memo going to do enough to push them in the other direction? That remains to be seen,” Chen said.
The number of those in detention has risen to 25,000 under President Biden, even as many migrants are swiftly expelled after crossing the border due to a Trump-era policy still in use by the new administration.
“That’s the piece that’s concerning because this memo is not in a vacuum and it exists at the same time NIJC and others have been documenting the systemic problems with a case review system allowing people to languish in detention,” Altman said, pointing to Department of Homeland Security data showing this year migrants have waited an average of more than three months in detention.
Even amid concerns, experts say the memo surpasses the relief that has been offered by previous administrations.
“It is a lot broader and a lot more generous than the comparable prosecutorial discretion guidelines we got under the Obama administration,” said Lily Axelrod, an immigration attorney with Siskind Susser in Memphis, Tenn. She noted that most of her clients would be considered low priority for deportation under the new memo.
But she said the memo is unnecessarily harsh when it comes to recent arrivals. Listed among the national security priorities ICE attorneys are directed to focus on are anyone who illegally crossed the border after Nov. 1 of last year.
“This nonsense about recent arrivals being high priorities — I understand the politics of that and trying to say, ‘We don’t want to help anyone coming to the U.S. because of Biden; we have to deter them,’ ” Axelrod said.
“But why does it matter that somebody came if they have a meritorious asylum claim or came to unite with family? He’s not going to score any points with Republicans. Republican senators aren’t saying, ‘Oh thank god there’s no prosecutorial discretion for people that came after November. Now we’re going to vote for an immigration reform bill.’ ... There’s no way to gain points from being cruel.”
But even with the wide variety of people eligible to get their cases dismissed, experts aren’t sure it will make much of a dent in the backlog in terms of sheer numbers.
“In the end it’s really going to come down to whether the attorneys do a rigorous job reviewing their cases consistent with the memo,” Chen said, adding that a similar memo under Obama produced “mixed results.”
Regardless, he thinks the directive will fall far short of the approach he’s advocated: nixing from the docket any case where the defendant has already applied for status with USCIS or others that have already lingered on the docket in excess of five years. In total, he estimates the government could cut about 660,000 cases that way.
“We’re not talking about the tens or hundreds of thousands of cases a systematic database review could effectuate,” Chen said of the memo, “which could be much more efficient and effective in moving a massive number of cases taking up space on docket and taking up government time.”
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