Biden Administration Quietly Allowing ‘Silent Amnesty’ of Migrants

The Biden administration is quietly allowing a “silent amnesty” by suspending or dismissing thousands of deportation cases pending in immigration courts, The Washington Times reported on Monday.

Terminating or dismissing a case removes it from the active docket, granting migrants de facto permission to stay in the country even though they do not hold legal status.

Deportation orders, as a percentage of decided cases, have decreased to 35% from January to June, which is about half the rate of the last two years of the Trump administration.

The number of case terminations has also gone up sharply even though immigration judges are deciding fewer cases.

“They’re dismissing these cases out of hand, and then ICE is releasing these people from custody,” one Justice Department source told the Times.

  • Unaccompanied alien children, or UACs, are stuck in the system for years. The latest statistics show the median UAC case has been pending for 1,025 days, more than three years. The median time to complete a UAC case is 1,653 days, or approximately 4.5 years.
  • Immigration judges are averaging only 132 case completions a year. A government employee is supposed to work 200 days or more a year, which means far less than one case completion a day.
  • At this point in fiscal 2019, immigration judges had completed almost 177,000 cases and ordered removals in more than 122,000 of them, or about 69%. Last year, the judges had completed more than 205,000 cases and issued removal orders in more than 152,000 of them, or about 74%.
  • But so far this fiscal year, judges have completed only about 63,000 cases and ordered removals in slightly more than 25,000, or about 40%. Eliminating the first three months of this fiscal year, which were still under the Trump administration, and the rate drops to about 35%.
  • Despite completing only about a third as many cases as last year, the number of terminations and dismissals is up from about 17,000 in 2020 to more than 23,000 this year. They account for 37% of all decisions, up from 9% last year and 6% in 2019.

Jeremy McKinney, the president-elect of the American Immigration Lawyers Association said that “implementation of the current adminstration’s common-sense immigration enforcement priorities are shifting those cases away from prolonged litigation and towards resolution through established paths of legal immigration.”

Andrew Arthur, a former immigration judge and currently a resident fellow in law and policy at the Center for Immigration Studies, pointed to a May memo from John Trasvina, the principal legal adviser at ICE, who urged the agency’s attorneys to use prosecutorial discretion to curtail deportations.

“Given that Biden’s new DHS leadership started signaling its intentions for immigration non-enforcement on day one, hundreds if not thousands of aliens (and more precisely, their lawyers) likely approached ICE after the inauguration to request prosecutorial discretion,” Arthur wrote.

Bolstering that theory is that a coalition of immigration lawyers urged just that course of action.

The coalition wrote in a March memo to lawyers that “if your client is subject to any of the enforcement actions mentioned above, or your client is in removal proceedings, and you believe that your client is not an enforcement priority under the new DHS and ICE guidance or merits prosecutorial discretion for another compelling reason, you should make a formal, written request for prosecutorial discretion as soon as possible, regardless of the stage of the case.”

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