AILA Public Statements, Press Releases

Federal Judge Blocks ICE Enforcement Guidelines and Attempts to Upend Prosecutorial Discretion

8/19/21 AILA Doc. No. 21081962. Prosecutorial Discretion, Removal & Relief
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For Immediate Release

WASHINGTON, DC, August 19, 2021 — Today, a federal judge in Texas blocked the Biden administration’s immigration enforcement priorities directing U.S. Immigration and Customs Enforcement agents to focus on those it considers to be a threat to public safety or national security. The decision was issued in a case challenging ICE’s ability to arrest, detain, and deport those outside the scope laid out in the February 18 enforcement memo.

Judge Drew Tipton of the U.S. District Court for the Southern District of Texas ordered ICE to formulate new policies by September 3, and to provide the court with the names, addresses, and criminal histories of anyone in the United States who is released from criminal custody and not transferred to ICE custody. Judge Tipton also declared that the president does not have discretion to choose not to detain certain immigrants.

The following statement is from Jorge Loweree, Policy Director at the American Immigration Council:

“Immigration enforcement has operated on overdrive for years, with immeasurable consequences for immigrant families and communities throughout the United States. Today’s decision upends meaningful efforts to move away from a dragnet approach to immigration enforcement. If permitted to stand, it will undermine one of the most basic principles of law enforcement—the government’s ability to determine who will and who will not be subjected to enforcement activities.

“ICE’s enforcement priorities were created to limit some of the harm experienced by immigrant communities over the last four years by narrowing the agency’s focus on people the government believes to be threats to national security and public safety. This decision seeks to force the federal government to lock up thousands of vulnerable people during a global pandemic while COVID-19 still rages through many ICE detention centers. It cannot stand.”

The following statement is from Jeremy McKinney, President-Elect of the American Immigration Lawyers Association:

“Every single day, prosecutorial discretion is exercised by law enforcement agencies. Yet, today’s decision disrupts DHS agency efforts to implement this longstanding principle in the immigration arena. It is outrageous that this federal judge has gone so far as to dictate who the executive branch can detain or not detain and in what cases it should expend finite law enforcement resources. The order’s myopic focus on two subsections of immigration law conveniently ignores other statutory provisions affirming the ability of the government to release people, even those subject to so called ‘mandatory detention.’ To be sure, the decision does not put an end to prosecutorial discretion, but by enjoining portions of the two memoranda issued by ICE and DHS, this Texas judge is single-handedly forcing the federal government to re-examine how it will enforce immigration law.

“Even after today’s decision, immigration attorneys and advocates should press the agency to exercise discretion in appropriate cases and implement robust policies on prosecutorial discretion. Enforcement must be done in a fair and humane manner and every advocate must continue to fight for their clients whether they are deprived of their liberty in a jail cell or free.”


For more information, contact:

Maria Frausto at the American Immigration Council, or 202-507-7526.

George Tzamaras at the American Immigration Lawyers Association or 202-507-7649

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on and Twitter @immcouncil.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

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