"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
NEWLY DISCLOSED ICE MEMO RESTRICTS PROSECUTORS’ ABILITY TO OFFER PROSECUTORIAL DISCRETION (“PD”) – Also Requires Review Of Previously Administratively Closed Cases With Eye Toward Re-Docketing (Thereby Increasing The Court Backlog)
Attorneys for Immigration and Customs Enforcement were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation, according to a previously unreleased memo obtained by BuzzFeed News.
The memo, which was issued Aug. 15, 2017, and obtained through a Freedom of Information Act request, provided a roadmap for how ICE attorneys were to prosecute cases under the Trump administration. It was written by Tracy Short, ICE’s principal legal adviser and head of the attorneys who handle deportation cases in court.
While immigration lawyers had long reported anecdotally that such changes had taken place in the courtroom, the memo is the first detailed explanation of how government attorneys were told to handle deportation cases and how to implement Trump’s executive order on immigration enforcement issued Jan. 25, 2017.
“Prosecutorial discretion is an act of administrative leniency, it is not an entitlement,” Short wrote.
Under the Obama administration, ICE attorneys were encouraged to request the dismissal or indefinite suspension of deportation cases of immigrants who were not serious criminals or national security threats. To do so, the administration directed ICE attorneys to look for qualifying cases and encouraged immigration attorneys to email ICE with requests for “prosecutorial discretion.”
Obama administration officials believed their approach would focus ICE’s limited resources on those unauthorized immigrants with the worst criminal records, as opposed to those who were largely contributing members of society.
Short’s memo told attorneys they were no longer required to check the email inbox used to receive requests for leniency from immigration attorneys. Short also wrote that ICE attorneys could consider prosecutorial discretion for immigrants in certain circumstances, such as a relative of a military member, has an obvious claim to status, has an “extraordinary humanitarian factor,” or is an asset to state or federal law enforcement. Even then, ICE attorneys must receive written approval from senior leadership in Washington for such a request.
Still, attorneys across the country have rarely seen immigrants granted reprieves, regardless of their circumstances, said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
“The revelation of the memo is important because it shows how the ICE trial attorneys were instructed to stop exercising prosecutorial discretion in all but the most extreme circumstances,” said David Leopold, an immigration attorney at Ulmer and Berne in Cleveland. “The memo changed prosecutorial discretion by all but forbidding ICE prosecutors from using their common sense or showing any compassion.”
Sarah Pierce, a senior policy analyst at the Migration Policy Institute, said the “memo is in line with the broader interior enforcement goal of the administration: Enforce immigration laws against everyone.”
The memo also directed ICE attorneys to review previously closed cases, instructing them to look for cases that don’t fit the administration’s new immigration enforcement priorities, which include practically all undocumented immigrants, and to prioritize reopening cases in which individuals had a criminal history or evidence of fraud. At the same time, attorneys were told that practically all undocumented immigrants were now priorities for deportation in the court.
As of August 2018, the government had requested the reactivation of nearly 8,000 deportation cases that had been administratively closed. The previous fiscal year, which included nearly four months of the Obama administration, there were nearly 8,400 such requests. The pace of such requests is nearly double that of the last two years of the Obama administration, when there were 3,551 and 4,847 such requests, respectively. Attorney General Jeff Sessions limited the ability for immigration judges to indefinitely suspend deportation cases in June.
“This is an unrelenting, unremitting deportation push. From that point of view, it is eye-opening in its scope, trying to make sure that no stone is unturned,” said a government official familiar with the memo who was not authorized to speak about it. “It systematically took any possibility where some independent judgment could be exercised by a government attorney and made it very clear they know what their marching orders are.”
A copy of the memorandum in question accompanies the full article at the above link.
So, ICE Assistant Chief Counsel will be “going to the mat” — thereby requiring “full” hearings — in almost every one of the 760,000 cases currently on the docket, plus perhaps hundreds of thousands of previously administratively closed cases.
At the same time, U.S. Immigration Judges are improperly being pressured by Sessions to set three or four merits cases per day, when most experienced judges would have difficulty completing two such cases in a fully professional manner consistent with Due Process.
Something has to give here. That something is likely to be Due Process for the respondents — the only real purpose of the system in the first place.
How long will this mockery of justice and parody of a “court system” be allowed to go on? Will Article III Judges be satisfied to be “rubber stamps” on a process that violates the Constitution? Or, will they step in and insist that the Immigration Courts comply with the Constitution — something that scofflaws like Jeff Sessions, Kirstjen Nielsen, and the other Trumpists have no intention of doing?
Only time will tell! But, history will record and remember what they did!
