Biden instructed ICE for new prosecutorial discretion on immigration

By Atty. Chris Caday Lozano

Good news for all immigrants having cases in Immigration Court.  The Biden Administration instructed ICE to use prosecutorial discretion on most immigration cases especially those in Immigration Courts.  We are waiting for the formal procedure to be adopted by ICE to apply for this relief.    

Immigration and Customs Enforcement prosecutors have been instructed by the Biden administration that they can consider dismissing cases for immigrants who have been longtime green card holders, are pregnant or elderly, have a serious health condition, or have been in the US from a young age, the documents state.

The guidance, written by chief ICE attorney John Trasviña, a President Biden appointee, was sent to prosecutors on May 27 and represents a shift in how the agency pursues deportation orders in immigration court by emphasizing the discretion prosecutors have in court. While it does not require prosecutors to toss cases, it could lead to more immigrants having the ability to push for delays or dismissal of their deportation cases.

DHS officials hope it leads to the public trusting that cases are not being pursued solely because they can be.

Trasviña instructed his attorneys to follow the Biden administration’s priorities on focusing resources on public safety and national security threats, but also explained that prosecutors should consider an immigrant’s circumstances in cases. He wrote that prosecutors can assess someone’s ties in the US, work history, or status as a victim or witness in a criminal proceeding when deciding whether to prosecute, dismiss, or delay cases.

The memo represents the latest change pushed by a Biden administration that is intent on reshaping how ICE officers and prosecutors pursue arrests and deportations. In recent weeks, ICE officials have set up a process for immigrants to appeal deportations and arrests via individuals at agency headquarters, sharply limited who could be arrested at courthouses across the US, and mandated that immigrants no longer be referred to as “illegal aliens” in official communications.

ICE prosecutors are key players in the immigration system as they pursue deportations and make daily decisions on whether certain cases should be dismissed or whether an individual should be released from detention. Immigration attorneys regularly request cases be delayed, closed, or dismissed in immigration court and prosecutors can choose to support or oppose those efforts as part of their discretion.

In Trasviña’s memo, prosecutors are told that they should be screening cases for potential prosecutorial discretion regardless of whether attorneys request it. This screening should happen at the beginning stages throughout the entirety of the process, officials added.

The memo appears to bring back many of the same principles ICE prosecutors followed during the Obama administration. During that time, ICE attorneys were encouraged to request the dismissal or indefinite suspension of deportation cases of immigrants who were not serious criminals or national security threats. To do so, the administration directed ICE attorneys to look for qualifying cases and encouraged immigration attorneys to email ICE with requests for “prosecutorial discretion.”

His memo not only reestablishes the use of the inbox for prosecutors to check for requests to delay or dismiss cases, but adds in a layer of reasons prosecutors should consider. Prosecutors are told to assess “mitigating” factors, such as whether the immigrant has family ties to the US, is pursuing an education, their contributions to the community, or their health, age, and pregnancy status, when moving forward with cases.

Whether someone fits the priorities of the Biden administration — namely whether they have certain criminal convictions — will be a major factor in the decision to agree to “continue” or delay cases.

According to the memo, cases that can be dismissed — in the absence of other serious factors — include whether an immigrant is a military member or has a relative in the military, whether they will “likely” be granted status through a relative or Temporary Protected Status, and compelling humanitarian factors.

Trasviña writes that while some humanitarian factors will “weigh more heavily” than others, those factors can include whether the immigrant has a serious health condition, is elderly, pregnant, a minor, or a victim of domestic violence or other serious crime. The head prosecutor notes that someone coming to the US as a young child and living in the country continuously should play a factor, as does whether they have a physical or mental illness or are a primary caregiver to someone with such a condition.

In those instances, prosecutors are told they can agree to a motion made by the immigrant to dismiss the case. DHS officials want the dismissal process to be mostly led by immigration attorneys and their clients, as not everyone wants a case cleared from the court dockets.

The agency also wants its prosecutors to consider dismissals for green card holders who have been in the US for many years, especially those who got their status at a young age and have a close tie to family and the community, according to the memo.

If you believe you qualify for prosecutorial discretion based on the enumerated factors above you may contact our law firm for free consultation.

Note: This is not a legal advice.

Chris Caday Lozano is a member of the State Bar of California since 1999 and specialized on Immigration and Bankruptcy Laws.  He has offices in Hayward and Cerritos CA.  His contact phone is 1-877-456-9266, email at,

Toll Free 1-877-4LOZANO for free consultation or Schedule an Appointment