ICE prosecutors may now dismiss low-priority cases, a move that could ease backlogged court

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The Biden administration is directing Immigration and Customs Enforcement (ICE) prosecutors to consider dismissing deportation cases deemed low priority by the federal government, in a policy move that could reduce the massively backlogged immigration court system by potentially hundreds of thousands of cases.

Under an April 3 memo, ICE prosecutors are authorized to dismiss cases of the cases of people who have not crossed the border recently and do not pose serious threats. It points to a memo from Department of Homeland Security (DHS) Secretary Alejandro Mayorkas ensuring “finite DHS resources are used in a way that accomplishes the department’s enforcement mission most effectively and justly.”

“Note that every law enforcement agency does this to focus enforcement resources on serious, important cases, but DHS has not effectively applied it in immigration cases,” tweeted American Immigration Lawyers Association (AILA) Director of Government Relations Gregory Chen.

RELATED STORY: House progressives urge executive action to protect immigrant families from deportation

“The memo could be a way to cut the growing immigration court backlog,” BuzzFeed News reported. “The staggering list of cases in immigration court, which number over 1 million, is unsustainable, officials say. Some cases take years to be heard.” CNN reports that perhaps as many as 700,000 cases could be considered low-priority, according to one estimate from AILA. The immigration court backlog is currently the highest it has ever been, according to TRAC Immigration:

“If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations—all the way back through at least the George W. Bush administration—have failed when they tried to tackle the seemingly intractable problem of the Immigration Court ‘backlog.’”

By comparison, the backlog was at roughly 150,000 cases at the start of the Bush administration, TRAC Immigration said. The Biden administration noted these years-long delays in announcing a finalized rule allowing asylum officers to handle some cases instead of leaving them solely to immigration judges. 

“Due to existing court backlogs, the process for hearing and deciding these asylum cases currently takes several years on average,” officials said last month. “When fully implemented, the reforms and new efficiencies will shorten the process to several months for most asylum applicants covered by this rule.”

House progressives in recommendations last month urged the removal of nonpriority cases, as well as other key actions to protect immigrant families from detention and deportation, including terminating or declining to renew private detention contracts in favor of community-based alternatives, the termination of agreements that allow local law enforcement to act as mass deportation agents, and an end to the debunked Title 42 policy.

Last week, the Biden administration announced the Stephen Miller policy will end by late May. Three GOP states have since sued, because they believe Democratic presidents have no right to govern.

ICE itself has now gone without a Senate-confirmed director for more than five years. While President Biden first put forward Harris County, Texas, Sheriff Ed Gonzalez a year ago, and received a committee hearing in June, his nomination stalled. Failing to receive a full floor vote before the end of 2021, Gonzalez’s nomination expired.

The administration again resubmitted his name in January, but it’s now April and he has yet to receive a confirmation vote. Tae Johnson, the final acting director under the previous administration, continues to remain in that role.

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