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The Lone Star State and the federal government continue to battle over immigration policy, with each sustaining wins and losses in the judicial arena. In August, a victory went to Texas over what Attorney General Ken Paxton said was inappropriate prosecutorial discretion in the Biden administration’s temporary arrest priorities.

The U.S. District Court for the Southern District of Texas blocked the expansion of prosecutorial discretion that would temporarily limit the arrests of undocumented migrants, including those who had been convicted of certain crimes.

What Is Prosecutorial Discretion (PD)?

Prosecutorial discretion (PD) is the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. Attorneys in the Office of the Principal Legal Advisor (OPLA) provide support to the Department of Justice in the prosecution of ICE cases and in the defense of ICE's authorities in federal court. OPLA uses PD and other factors to guide its decision-making.

In determining whether to exercise PD in immigration cases, OPLA may consider such factors as:

  • Length of residence in this country
  • Service or a family member’s service in the U.S. military
  • Family or community ties in the U.S.
  • Circumstances of their arrival in the U.S.
  • Their prior immigration history
  • Work and education history in this country
  • Whether they are a victim, witness, or plaintiff in civil or criminal proceedings
  • Compelling humanitarian factors

Background on Temporary Arrest Priorities

On his first day in office, President Biden signed executive orders that reversed many of the Trump administration’s immigration orders. Following these orders, the Department of Homeland Services (DHS) Acting Secretary David Pekoske issued a Jan. 20 memo to immigration and border protection leadership that directed a comprehensive review of civil immigration policies, established interim civil immigration enforcement policies, instituted a 100-day pause on certain removals, and rescinded other policy memoranda. His memo also directed ICE to issue interim guidance on how to implement the revised enforcement policies and removal pause.

In February, ICE Acting Director Tae Johnson issued its guidelines for temporary arrest priorities for ICE. According to the memo, the new criteria were due in part to resource constraints, the health and safety of ICE personnel and those in custody (elevated because of COVID-19), and to ensure that eligible noncitizens can seek relief from deportation.

The memo prioritized arrests in the following order:

  1. National Security Risks. The noncitizen is suspected to be engaged in terrorism, espionage, or any other activity that threatens national security.
  2. Border Security. The noncitizen is attempting to unlawfully enter the U.S. on or after Nov. 1, 2020 or wasn’t physically present in this country before that date.
  3. Public Safety. The noncitizen has been convicted of an aggravated felony or an offense related to participation in a criminal street gang.

OPLA attorneys were encouraged to focus agency resources on cases that fall within one of the three priority categories and to exercise prosecutorial discretion in non-priority cases. The memo went on to state that any enforcement or deportation action that did not meet the above criteria would require prior approval.

For those noncitizens convicted of a crime, the current administration gave federal attorneys more flexibility to consider the seriousness of the offense, any extenuating circumstances, the time and length of any sentence imposed, and signs of rehabilitation before deciding whether to pursue or dismiss removal proceedings.

Texas cited these two memos from DHS and ICE in their April lawsuit against the federal government. The lawsuit argued these new procedures for deporting undocumented immigrants who have been convicted of crimes are illegal and asked a federal judge to force DHS to take them into custody before they are released by local or state law enforcement.

A May memo to government attorneys provided guidance and lifted many of the restrictions the Trump administration placed on their abilities to administratively close or dismiss deportation cases.

Chief ICE Attorney John Trasvina broadened prosecutorial discretion to dismiss deportation cases including:

  • Pregnant Immigrants
  • Elderly Immigrants
  • Immigrants in the U.S. Since a Young Age
  • Immigrants with Severe Health Concerns

Whether an immigrant had close family in the U.S., was pursuing higher education, or was making a positive impact in their community were also factors that should be considered when determining whether to deport someone.

While this May memo was not part of the lawsuit, Trasvina reportedly told immigration prosecutors on Aug. 20 to not implement the guidance provided and to instead use previous criteria.

The Texas Lawsuit

The heart of the Texas lawsuit, also joined by Louisiana, was that the Biden administration violated federal law by not detaining criminal immigrants upon their release from prison. According to two federal immigration statutes, certain criminals must be detained and does not allow for prosecutorial discretion.

The lawsuit also argued that the changes in arrest and enforcement violated an agreement signed in the last days of the Trump administration. The agreement requires DHS to give Texas officials 180 days' notice before changing immigration enforcement in the state. Biden administration lawyers have argued that no state can have veto power over federal immigration authority and that outgoing presidents cannot make binding policy decisions for their successors via agreements with the states.

The federal judge blocked the Biden administration guidelines in an Aug. 19 ruling, declaring that the president does not have the discretion to choose which immigrants are detained. The ruling also found that the enforcement priorities violated federal administrative law, saying they should have been implemented through regulations open to comments from the public. The ruling also ordered ICE to formulate new policies by Sept. 3 as well as provide the court with the names, addresses, and criminal histories of anyone released after serving a sentence but not transferred to ICE custody.

Next Steps

Judge Drew Tipton, the U.S. district judge who entered the Aug. 19 ruling, provided a stay of his injunction until noon Aug. 30, allowing the federal government an opportunity to appeal to the Fifth Circuit of Appeals or the Supreme Court. He also delayed until October the requirement to prepare reports providing the names of immigrants with criminal records who were detained or released. On Aug. 25, the Fifth Circuit granted an administrative stay of Judge Tipton’s injunction until the Fifth Circuit can issue its decision.

Our legal team at The Modi Law Firm, PLLC is continuing to monitor all actions taken in both the executive and judicial branches of the U.S. government to provide updated insight for our clients.

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If you or a loved one needs help with any aspect of immigration law, contact us online or call (832) 514-4030.