On May 27, ICE’s Principal Legal Advisor (PLA, the agency’s general counsel) John D. Trasvina issued interim guidance to the agency’s lawyers, who represent the interests of the American people in removal cases before the nation’s immigration courts. It is a way-too-long document couched in hoary legal language, vaguely schizophrenic, and gives a pass to most criminal green card holders, among others.
Formally captioned “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities”, the document aims to indoctrinate ICE’s lawyers into the new realities of immigration enforcement under the Biden administration. Trasvina’s guidance draws upon and reinforces other non-enforcement documents that have been issued by the current administration.
Those include a memorandum issued by then-Acting DHS Secretary David Pekoske on January 20, captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” and a February 18 memo from Acting ICE Director Tae Johnson, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”.
Basically, those two documents “prioritize” just three categories of cases: alien terrorists or spies; aliens who entered illegally after the utterly arbitrary date of November 1, 2020; and criminals who have been convicted of aggravated felonies or who are (under an unduly narrow definition) gang members.
That is not to say that ICE employees cannot take action against other aliens, but doing so requires complying with an onerous supervisory approval process and weekly headquarters’ review.
If those documents sound familiar, it’s because I analyzed them in a February 23 post headlined “ICE's Enforcement Guidance Wastes the Resources It Claims To Be Conserving”. Trasvina’s latest opus is in the same vein.
There is a lot that could be said — almost none of it good — about the May 27 guidance. I will attempt to be brief, but before I do, let me explain what ICE lawyers are supposed to do.
First, and with limited exceptions, ICE lawyers are not involved in bringing charges against aliens. They may assist CBP and ICE line agents and officers in working up cases on removable aliens, but it is those agents and officers who actually complete and file the necessary documents with the immigration courts to place those aliens into removal proceedings.
In those proceedings (which are heard by immigration judges or “IJs”), however, it is ICE lawyers who offer briefing, evidence, and legal arguments to the court to establish that those aliens (termed “respondents”) are removable, and respond to respondent’s motions and applications for bond and/or relief.
ICE lawyers can also file appeals with the Board of Immigration Appeals, seeking to reverse or modify IJ decisions.
This role requires a high level of independence on the attorney’s part, but some filings have always been subject (to one degree or another) to review by supervising lawyers, and appeals are subject to review and approval by lawyers at ICE headquarters.
Through the end of May, there were more than 1.3 million cases pending before the immigration courts, however, and given that massive backlog, the PLA has little day-to-day influence over the vast majority of them.
The May 27 memo focuses on those attorneys’ exercise of prosecutorial discretion. In this context, that means the commencing and prosecution of removal cases, agreeing to motions to continue or terminate, conceding eligibility for bond or relief, and foregoing appeals of decisions that go in the respondent’s favor.
Historically, prosecutorial discretion has been exercised on a case-by-case basis for truly exceptional cases. Almost all of the respondents who are charged are, in fact, removable, and when I was a trial attorney with ICE’s predecessor (the Immigration and Naturalization Service), I viewed it as my job to complete each case to a final conclusion as quickly as possible, consistent with due process.
I was not an outlier in that regard, and that standard is the norm.
Consequently, terminations of otherwise meritorious cases are usually only done with supervisory consent, cases are only to be continued if they meet rigid legal standards, eligibility for relief is only conceded if it is clearly available, bonds are only set or reduced if there are changed circumstances or if continued detention is inappropriate, and if the IJ screwed up, appeals should be prepared.
The Pekoske and Johnson memos have all but eviscerated immigration enforcement for any new cases involving removable aliens going forward, but it is Trasvina’s that attempts to undo existing ones that are in that 1.3 million-plus case pipeline.
That May 27 guidance does not spike all cases that do not fit into the “priorities” delineated in the Pekoske and Johnson memos, but it does “encourage” ICE attorneys to liberally exercise discretion not to prosecute cases that fall outside of those priorities.
I put “encourage” in quotation marks for a good reason, and it goes to the schizophrenic nature of that document.
The essence of prosecutorial discretion is that the individual attorney should exercise it — or not — based upon his or her independent judgment.
In fact, to support his contention that ICE lawyers have broad discretion to rig the system in the alien’s favor, Trasvina quotes then-Attorney General Robert Jackson, who told a group of federal prosecutors in 1940:
Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.
Such “independence”, however, is implicitly called into question by Trasvina’s requirement that all requests by respondents for prosecutorial discretion — along with any accompanying documents — be entered into his office’s central database (which has the unoriginal name “PLAnet”), regardless of whether discretion was exercised in a given case or not.
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.
Further, the May 27 guidance contains a list of categories of cases that should usually be dismissed “in the absence of serious aggravating factors” (emphasis added). Included are those involving sick, young, old, and pregnant respondents, as well as long-term green-card holders (formally known as “lawful permanent residents” or LPRs).
Just to be clear, if ICE attorneys are so “independent” that they have the power to allow an alien to remain even though Congress has stated that the alien should leave, what gives Trasvina the ability to tell them how to exercise their discretion in individual cases?
That said, the LPR reference is particularly noteworthy. They are “permanent” residents for a reason: They can stay in the United States indefinitely, so long as they don’t do anything that would get them deported.
Directing the dismissal of charges against those LPRs in all except the most extreme cases means that aliens who were allowed to stay provided that they obeyed the law, and who subsequently violated the law in a way that would make them removable, will get to stay anyway.
Yes, ICE attorneys have discretion, but Congress makes the rules when it comes to immigration. Well, except when a temporary government employee like the PLA does.
The most common reason that LPRs become subject to deportation is because they have committed a crime. Under the May 27 guidance, regardless of how Congress has designated the crime — and again except for the most heinous offenses — those aliens will get to remain, likely to keep committing crimes until they finally cross Trasvina’s vague and arbitrary lines.
How exactly is “justice done” in Jackson’s words in that scenario?
There is not much “justice” in dismissing removal proceedings in cases involving aliens who don’t otherwise have status, either. They are not here legally and they don’t have the right to work, which means that letting them remain in limbo really doesn’t do them many favors.
Allowing them to stay, of course, will just encourage more aliens to enter illegally. Biden’s immigration policies have already made maintaining order at the border next to impossible. Trasvina’s guidance only makes that worse.
Note that this guidance is only “interim” until final diktats emerge from the PLA’s office. Don’t expect them to get a whole lot better. In the “interim”, the independence of demoralized ICE lawyers has been further restrained, while the prospects of alien criminals — among others — have brightened significantly.