GOP criticizes memo giving ICE attorneys more discretion to drop immigration cases

A group of four Senate Republicans is criticizing a Biden administration effort to limit the number of immigration cases funneled into a years-long backlog by focusing on deporting migrants who pose a public safety or national security threat.

A letter from Sen. Rick Scott (R-Fla.) points to an April U.S. Immigration and Customs Enforcement (ICE) memo that encourages its prosecutors to use their discretion to pursue cases against those deemed a higher priority threat while not initiating or dismissing cases against those who are not. 

The ICE memo is just one of many addressing those themes following a memo last year from Homeland Security Secretary Alejandro Mayorkas to center immigration authority efforts on those who recently crossed the border, have a criminal record, or otherwise pose a threat to national security. 

But Scott argues such a practice is an abuse of prosecutorial discretion over what cases to bring.

“This misguided policy prioritizes artificially lowering the backlog of immigration court cases above enforcing our immigration laws enacted by Congress, and represents a gross abuse of prosecutorial discretion,” Scott wrote in a letter also signed by Sens. Josh Hawley (Mo.), Ron Johnson (Wisc.) and Rand Paul (Ky.).

“Under the guise of exercising ‘prosecutorial discretion,’ the Doyle Memorandum proposes the mass dismissal of these pending deportation cases against aliens who are unlawfully present in the United States and otherwise subject to removal for violating our immigration laws,” he wrote, referring to the formal name of the memo.

“Turning a blind eye…will encourage further illegal immigration and embolden criminal aliens already unlawfully present in our communities.”

The memo notes the 1.5 million case immigration court backlog – a figure that now rests at 1.7 million cases.

“Attorneys must be particularly mindful of the resource constraints under which we operate at a time when the immigration courts’ dockets total over 1.5 million cases nationwide. Sound prioritization of our litigation efforts through the appropriate use of prosecutorial discretion can preserve limited government resources, achieve just and fair outcomes in individual cases, reduce government redundancies, and advance DHS’s mission of administering and enforcing the immigration laws,” Kerry Doyle, ICE’s principle legal advisor wrote in the memo.

The memo outlines a series of steps ICE attorneys can take. While they can move to dismiss or close cases that would remove them from the courts docket, they can also simply not file a notice to appear in court. 

In such cases, any noncitizen not yet in the DHS system would need to undergo FBI fingerprinting.

The letter from lawmakers asks DHS to provide an unredacted version of the memo, as the publicly available copy includes four short redacted sections.

It also asks what will happen to the immigration status of those whose cases are never heard in court.

“Does dismissal or administrative closure confer upon the alien a lawful immigration status? If so, how long is such lawful presence valid? If not, does the individual remain in a deportable status?” they ask.

The Biden administration’s approach has been a significant departure from the Trump administration, under which all undocumented migrants were considered a priority.

Mayorkas’s initial memo argued that many noncitizens “have been contributing members of our communities for years.”

“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” he wrote in the memo last year.

“It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States. We do not have the resources to apprehend and seek the removal of every one of these noncitizens.”