On June 11, Jean King, the acting director of the Executive Office for Immigration Review (EOIR) — the DOJ component with jurisdiction over the nation’s immigration courts and the Board of Immigration Appeals (BIA) — issued guidance to her immigration judges (IJs) and BIA members on the effects of DHS’s immigration enforcement priorities and initiatives. That guidance sets a dangerous precedent, and should prompt a vigorous response from those purportedly interested in “judicial independence”.
By way of brief background, since the inauguration of President Joe Biden, DHS — in the name of “prioritizing” its efforts to preserve purportedly limited resources — has been directing ICE to significantly curtail immigration enforcement. That includes not just removals, but also the questioning and charging of aliens, and their detention and arrest.
The “priorities” for enforcement are extremely narrow: aliens who are terrorists and spies, those who entered the United States illegally after October 31, 2020, criminal aliens who have been convicted of aggravated felonies, and certain gang members.
As I explained in a June 28 post, that ICE non-enforcement regime has now been extended to alien respondents who are already in removal proceedings.
The agency’s attorneys — who represent the interests of the American people in immigration court proceedings — were directed in a May 27 memo to exercise “prosecutorial discretion” by dismissing or agreeing to continue cases against otherwise removable aliens, stipulating to those respondents’ eligibility for immigration relief and benefits, and curtailing their appeals of IJ decisions.
That all of that is contrary to the interests of justice should be apparent, but just in case it isn’t, that May 27 memo means that aliens who should be removed won’t be, and also that certain respondents who would not have otherwise been given immigration benefits now will.
Which brings me to the King memo, IJs, and the BIA. It does little good for ICE attorneys to agree to attempt to dismiss or continue cases if those judicial officials refuse to do so, or to concede to relief that IJs and the BIA will not grant.
Much was made of the impingement of the independence of IJs (in particular) under the Trump administration. While the four attorneys general (two confirmed, two acting) under the last president issued any number of decisions that interpreted various provisions of the Immigration and Nationality Act (INA), each of them took a fairly hands-off approach to how IJs and the BIA actually applied the law.
The June 11 guidance is something altogether different. Here’s why:
“Prosecutorial discretion”, as noted, is the purported basis of the May 27 memo, issued by de facto ICE General Counsel John D. Trasvina. In most cases, and historically, that means the discretion of the individual ICE trial attorney to agree to a continuance, terminate a case, or concede eligibility for relief.
That is not to say that supervisory lawyers in the agency have never gotten involved in individual cases. As an associate general counsel in the former INS, I supervised many of the agency’s trial attorneys in various high-profile matters, and I myself followed the direction of the general counsel, INS commissioner, and occasionally the attorney general.
Trasvina’s memo pays lip service to the “independence” of ICE’s line lawyers, and then tells them — more or less — what they are going to do.
That is a difficult position for any lawyer to be placed in, because every lawyer is required to exercise his or her sound judgment in representing any client. That does not mean that the client pays the money and then shuts up. It is ultimately the client’s case — but no lawyer can be forced to make an argument for which there is no legal basis.
For example, Rule 2.1 of the Model Rules of Professional Conduct begins: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”
Further, Rule 3.1 states, in pertinent part:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Usually, these rules are guardrails to prevent lawyers from overzealously representing clients. Note though that they do not continue: “however, you can tank a case whenever your boss tells you to.”
Likely for these reasons, Trasvina’s memo directs ICE attorneys to document any requests that are made for the exercise of prosecutorial discretion in the agency’s database (PLAnet), regardless of whether discretion was exercised in a given case or not.
As I explained in my June 28 post: “The only reason to require such documentation is to allow higher-ups to second-guess and micromanage their purportedly ‘independent’ lawyers, on a real-time basis.”
If lawyers generally are supposed to exercise their independent judgment, that goes double for judges. As an IJ, I had the duty and responsibility to exercise my discretion as I saw fit (when the INA gave me discretion) and to apply my legal know-how to get to the correct decision, in a timely manner consistent with due process.
The June 11 EOIR guidance does not tell IJs or the BIA what decisions to issue or how to issue them (nor could it). Instead, it falls back on the rule that courts can only resolve real disputes between the parties. If there is no dispute, there is nothing for the IJ to decide.
So far, so good. But then, it does something unusual — at least in judicial terms — when it states:
Immigration judges should be prepared to inquire, on the record, of the parties appearing before them at scheduled hearings as to whether the case remains a removal priority for ICE and whether ICE intends to exercise some form of prosecutorial discretion, for example by requesting that the case be terminated or dismissed, by stipulating to eligibility for relief, or, where permitted by case law, by agreeing to the administrative closure of the case.
What does it mean to say that IJs “should be prepared to inquire ... whether a case remains a removal priority for ICE and whether ICE intends to exercise some form of prosecutorial discretion”? Is EOIR telling me as an IJ that I must ask ICE those questions? If so, don’t beat around the bush.
Besides, why would an IJ care about ICE’s removal priorities? I was an IJ for more than eight years, through both Republican and Democratic administrations, and ICE’s priorities shifted constantly. I only cared about the case that was in front of me at that moment.
And under precedent, IJs are not even allowed to consider their own completion goals in ruling on a continuance. Now, they are supposed to consider the policies of an entirely different agency in an entirely different department on any number of issues on which the IJ has the ultimate decision?
Understand what I am not saying. If ICE attorneys operating under their own agency’s policies want to ask the court to dismiss a case involving a facially removable alien who has no available relief, they can file a motion to dismiss. But that does not mean that the IJ has to grant it.
Nor does an IJ have to grant relief even when ICE stipulates to eligibility for it. The lawyers have their jobs, and the court has its. The name at the bottom of the order was mine, not counsels’.
The June 11 memo plainly requires IJs to become involved in “prosecutorial discretion”. Remember, every request for such discretion has to be entered into PLAnet, meaning that the ICE attorney’s supervisors are going to know about it, and the attorney is going to have to answer for not exercising discretion.
More fundamentally, however, such involvement blurs the distinctions between the prosecutor and the court. When I was an IJ, I showed up for court ready to hear the case before me, and that was it. Asking a lawyer whether they wanted to exercise discretion is (in my opinion, at least) an intrusion into that discretion.
Nothing that I am aware of that occurred under the Trump administration ever really encroached into the independence of the immigration courts. Respectfully — and once more in my opinion — however, such vague directions as those contained in the June 11 memo do just that, and interfere with the independence of ICE attorneys, as well.
There were many voices during the Trump administration who loudly demanded judicial independence. If they were being anything other than partisan immigrants’ advocates then, I expect similar howls of complaint now.