How the Biden Administration’s ICE Guidelines May Affect Your Pending Case

By Grace Rolman

President Biden recently wrote a memorandum, an official statement, to Immigration and Customs Enforcement (ICE) establishing that there should be new guidelines administered by ICE officials, specifically ICE attorneys, in dismissing non-priority immigration cases.  Within the past several years, immigration cases have backed up the federal court system and the wait to hear from immigration court continues to grow longer for all - no matter whether they are applying to become a U.S. citizen or are in removal proceedings. *These guidelines, however, are only applicable to those who are in removal proceedings or have open asylum cases.*

Covid-19 brought the U.S. Courts to a halt for many months as they transitioned to electronic hearings made within the courts in order to resume the necessary proceedings. Not only did the pandemic cause the court systems to become delayed by almost an entire year, but the previous administration’s policies were vastly different from President Biden’s policies. The Trump administration found all immigration cases to take precedence and all immigration cases were a matter of national security, public security, and border security, even where the individual posed no threat.

Now, as immigration courts have reached an all-time high as to the volume of cases as well as to the time it takes for courts to even begin the hearing process of a case, the Biden administration has elected to make a change to the guidelines in immigration policy. These guidelines are being enacted in order to cut down on the number of cases within the Immigration Court, so the court system is not completely overwhelmed by the volume of cases it currently has to hear and declare judgments on. Instead, President Biden has administered new guidelines which allow for ICE attorneys to use their “prosecutorial discretion” to dismiss low-priority cases that do not involve national, public or border security threats.

Prosecutorial discretion is a legal term used for prosecutors, which, in immigration law, are the government’s attorneys, who may decide - based on evaluating the information on each person’s case - whether they fit into President Biden’s guidelines of a low-priority case that would not threaten the national, public, or border security of the United States. If a prosecutor chooses to use their prosecutorial discretion with these guidelines, they may dismiss a person’s pending removal or asylum case.  Now, what does it mean to have a case dismissed?

If your case is dismissed, this means all status has been removed - including if you have previously applied for and been awarded work authorization; however, there is no threat of receiving an Order of Deportation. If your case is dismissed, there are two real options to consider: (1) reapply under a separate status such as a change of conditions, like an unexpected change in ICE Guidelines, or (2) leave the country voluntarily.

Can the Government reopen dismissed cases? Yes. For now, the guidelines in place are that only high-priority cases are encouraged to remain in immigration court - these are cases that threaten national, public, or border security or where an individual has criminal convictions. However, these guidelines could change in the future, and most likely will change as the Immigration Court’s systems are not overrun by so many cases.

Is Prosecutorial Discretion Mandatory? No. Prosecutorial Discretion is not mandatory. President Biden is recommending in his guidelines that ICE prosecutors use their own discretion to determine which cases are a high priority in the Courts. There is no guarantee that any specific cases will be dismissed.

Can I request Prosecutorial Discretion for my Pending Case? Yes. Contact your attorney to fill out the necessary documents in order to request prosecutorial discretion in your pending removal case. 

*If your case has been referred to Immigration Court by USCIS, you or your attorney must request Prosecutorial Discretion in order for it to be considered*

What happens if YOUR case is Dismissed? Speak with your attorney. Every case is different. Sometimes, having these cases dismissed is a very positive outcome to avoid an Order of Removal where that likely would have been the outcome; however, this can be difficult for others who have work authorizations and a strong asylum case. Your attorney will be able to work with you and is knowledgeable about what the courts are currently doing right now. Remember, these dismissals are only applicable to a select group of immigration cases, and yours may not be at risk. If yours is, it may not undergo Prosecutorial Discretion, and if it does, your attorney will be able to guide you in the proper direction.

If you need advice from an attorney, please go to www.irlawcenter.org/our-clients-consultation and fill out the Request a Consultation Form.