As much as it’s one of the cooler acronyms in the bureaucratic alphabet soup, it may be time to retire ICE, because the “E” part clearly isn’t very important to President Joe Biden’s administration.
Maybe we could try ICES: Immigration and Customs Enforcement, Sometimes. That’s clearly the message the president is sending. After all, he’s nominated Harris County, Texas, Sheriff Ed Gonzalez — who stopped working with ICE under a federal partnership during his time in his current office — to head the agency. Biden also called for a 100-day halt on deportations — which was blocked by a judge, but deportations are still way down under the Biden administration.
And late last month, the administration sent ICE attorneys a memo urging them to use prosecutorial discretion over what cases they should seriously pursue.
According to a report Friday in The Hill, the memo, originally drafted May 27, includes a number of factors ICE prosecutors should consider as mitigating factors when looking at whether a case should be pursued.
For instance, lawyers are allowed to forgo cases that involve green card holders; the elderly, pregnant or ill; and those who have been in the United States from a young age.
Not only that, lawyers were supposed to look at “compelling humanitarian factors” when looking at which cases to bring into immigration court. If the individual has been a victim of a crime, for instance, or is a caregiver, the Biden administration urges that to be considered.
“Prosecutorial discretion is an indispensable feature of any functioning legal system,” wrote chief ICE attorney John Trasviña in the memo.
“The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the department’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.”
The memo added discretion should be used “at the earliest point possible.”
BuzzFeed News, which originally revealed the existence of the memo on Friday, reported that “[Department of Homeland Security] officials hope it leads to the public trusting that cases are not being pursued solely because they can be.”
“The reality is that we have 1.3 million cases in the immigration court system today and it is extremely hard for a person to have their case heard at this point in a timely fashion,” on unnamed DHS official is quoted as saying.
“That is not a mark of a system that is working as you want it to be working. We are hoping this is not only going to lead to an immigration court system that is not only a little more manageable in its workload, but also that we’ll start to see results from this process that will themselves help to restore faith in the system itself in the way that the immigration laws are being administered.”
There was an entreaty in the memo from Trasviña to focus on national security threats and public safety. Also, lawyers weren’t specifically told to refrain from pursuing cases.
The tone of what was contained therein, however, was pretty unmistakable: If ICE attorneys can find a way to get to abandoning a deportation case, maybe it would be wisest to do so. In addition, this is diametrically opposed to the policies under former President Donald Trump, who limited prosecutorial discretion.
“This is absolutely significant and a game-changer for many people who were completely out of luck,” John Amaya, a former senior ICE official, told BuzzFeed News. “It will have a profound impact on individuals who had no path forward under the strict guidelines the last administration applied.”
Another unnamed DHS official said greater prosecutorial discretion would “build faith” in the system, according to BuzzFeed.
“As a general matter, making decisions about when and how to enforce the law in a way that is just and is fair and that resonates with people is one way certainly to show fidelity to the law, but also to build faith that the laws are being applied in a way that’s consistent with our values and that itself can help build confidence in the system as a whole,” the official said.
In other words, the second part of the two-word construct “prosecutorial discretion” doesn’t necessarily sound like rings true. Discretion, after all, is something one does of one’s own volition. If your boss encourages pulling overtime to ensure a project gets accomplished, but insists pulling that overtime is at your own “discretion,” how much stock are you putting into that insistence?
As BuzzFeed News noted, this was “the latest change pushed by a Biden administration that is intent on reshaping how ICE officers and prosecutors pursue arrests and deportations.” ICE attorneys are one of the most important links in the deportation process, deciding which cases to pursue and which should be delayed or dismissed.
Now, their boss is telling them, in no uncertain terms, that it’s at their discretion to not pursue overtime in that department.
It’s not rocket science what the effect of this memo will be: Prosecutors will now essential ignore one of the law governing who is allowed to enter the country’s borders — one of the most important laws on the books of any entity that claims to be a sovereign nation.
“In Trasviña’s memo, prosecutors are told that they should be screening cases for potential prosecutorial discretion regardless of whether attorneys request it,” BuzzFeed reported. “This screening should happen at the beginning stages throughout the entirety of the process, officials added.”
That’s quite extraordinary — even if defense lawyers don’t call for the prosecutors to consider using prosecutorial discretion, prosecutors are supposed to use it. What more do you need to know?
Maybe a better acronym would be ICER: Immigration and Customs Enforcement, Rarely. On the basis of this memo and everything else we’ve seen regarding ICE’s purview under the Biden administration, that’s certainly the direction we’re heading.
When Biden took the oath of office on Jan. 20, he swore to “faithfully execute the Office of President of the United States” and to “preserve, protect and the Constitution of the United States.” That same Constitution requires the president — whoever he is — to “take Care that the Laws be faithfully executed.”
This is a betrayal of that oath, and an abdication of President Biden’s responsibility to uphold our laws and protect our citizens — and yet, why are we surprised?