On January 20, the day that Democratic President Joe Biden was sworn into office, Acting Secretary of the U.S. Department of Homeland Security (DHS), David Pekoske issued a memo that ordered a 100-day pause on certain deportations and prioritized immigration enforcement to individuals who have engaged in or are suspected of terrorism, those detained at the border, or people who have been convicted of an aggravated felony. The 100-day deportation pause has been challenged in court and was temporarily blocked by a federal judge.
Under the Trump administration, ICE's enforcement priorities were significantly broader and immigration courts were ordered to process cases that had been "administratively closed," meaning that they had previously been suspended indefinitely.
The new guidance, Pekoske wrote in the memo, applies to a "broad range" of discretionary enforcement decisions, such as who to detain or whether to settle or dismiss a specific case.
But some Arizona-based immigration attorneys say that ICE attorneys are refusing to dismiss cases or halt removal proceedings for undocumented immigrants who don't fall under the new DHS enforcement priorities.
"This is a profile of the vast majority of our cases that are set for trial right now," said Matthew Green, a Tucson-based immigration lawyer. "All of a sudden, the priorities don’t align with the enforcement actions that are happening."
Daniel Rodriguez, a Phoenix-based immigration attorney, said that he has "12 to 24" cases where the people are "definitely not immigration removal priorities" based on the new guidance. ICE attorneys have told him that they are waiting for more "guidance."
"Right now, they are not reacting to this with open arms in terms of saying 'look, we can just close these cases." They know these cases are going to be closed," Rodriguez said. "Saying, 'nope we’re going to wait' is sending the message that they’re going to resist this process every step of the way."
Green said that local ICE prosecutors are taking a hard line when it comes to requests from immigration attorneys to use prosecutorial discretion to dismiss cases.
Line-level prosecutors have conveyed to Green that, "they do not have authority — they are awaiting further guidance. And at this point they will not consider prosecutorial discretion requests at all," he said.
Attorneys have started sending letters to the Office of the Principal Legal Advisor, ICE's legal division, requesting that prosecutors dismiss cases based on the new guidance.
One letter requesting a case dismissal authored by Green that is dated February 11, 2021, states that his client "has no criminal history, nor does he have any removals or voluntary departures. Applying the interim criteria that are now in effect, he is unequivocally not an enforcement priority."
Yasmeen Pitts O'Keefe, a spokesperson for ICE, said in a written statement that ICE was following the Biden administration's new enforcement guidelines.
"U.S. Immigration and Customs Enforcement (ICE) is now implementing the civil immigration enforcement priorities directed by the U.S. Department of Homeland Security (DHS) on Jan. 20, to focus its limited resources on threats to national security, border security and public safety," she wrote. "ICE will continue to carry out is duty to enforce the laws of the United States in accordance with the Department’s national security and public safety mission."
When asked if there was any standing policy or directive preventing ICE attorneys from using prosecutorial discretion to dismiss cases, Pitts O'Keefe responded: "Each case is reviewed individually based [on] the totality of the circumstances."
Asked whether ICE attorneys have been ordered to wait for additional guidance before using discretion to dismiss cases, she referred New Times to a February 18 memo authored by Acting ICE Director Tae Johnson that reiterated the orders in the January 20 memo.
"What gets lost in this is the trauma of going through a proceeding like this," Green said. "All of this is avoidable ... it’s just as if they’re holding out as long as they can until they are told in black and white what seems to be very clear right now."