A recent memo to immigration judges obtained by NBC News provides fresh insight into how the Trump administration is pulling off a new tactic — dismissing pending immigration cases, then immediately moving to arrest the immigrants — that is part of its bid to quickly increase the number of immigrants it is detaining.
In the memo, the Justice Department instructs immigration judges, who report to the executive branch and are not part of the independent judiciary, to allow Department of Homeland Security lawyers to make motions to dismiss orally and then move quickly to grant those dismissals, rather than allow immigrants the 10-day response time that had been typical.
“Oral Decisions must be completed within the same hearing slot on the day testimony and arguments are concluded,” says the memo, which is dated May 30. It also tells the judges that “[n]o additional documentation or briefing is required” to grant the dismissals.
Once their cases are dismissed, the immigrants in question may be put in expedited removal proceedings, which means they can be deported without a chance to make their cases for asylum before immigration judges. The memo notes that people in expedited removal proceedings “are subject to mandatory detention” and can be taken into custody by Immigration and Customs Enforcement, which falls under DHS.
The Justice Department did not respond to a request for comment.
A source close to the immigration judges’ union said that the move is legal but that it is still upsetting to many immigration judges.
“They think it makes a mockery of the whole process and that it flies in the face of what Trump ran on. Immigration enforcement means it’s done in a fair manner ... and this isn’t fair,” the source close to the union said. Immigration judges are not authorized to speak to the media except through their union.
The memo cites a provision of the Immigration and Nationality Act that sets out the conditions under which the government can move to dismiss an immigrant’s case. But it misstates the statute. The memo says, without quotation marks, that judges may grant motions to dismiss when “circumstances have changed to such an extent that continuation is no longer in the best interest of the government.” But the Immigration and Nationality Act’s wording is more specific; it states that cases can be dismissed when “circumstances of the case have changed to such an extent that continuation is no longer in the best interest of the government.”
Greg Chen, senior director of government relations at the American Immigration Lawyers Association, said he believes the new guidance violates that provision of the Immigration Nationality Act and is not legal.
“The omission of the words ‘of the case’ is deliberate because DHS is trying to avoid having to speak to the individual case. The law requires them to provide particular reasons for their motion, and they are not doing that. The email is the written policy that contradicts the law,” Chen said.
Jason Houser, who was chief of staff at ICE during the Biden administration, said dismissing cases that way will allow ICE to arrest more people but will not really help it speed up deportations because it lacks enough space to detain those arrested before deportation.
The tactic of dismissing cases and then arresting people whose cases were dismissed “targets vetted migrants who were working and had legal status,” he said. “Flooding the system with thousands of noncriminals wastes time and resources when federal law enforcement should be focused on national security threats.”
As the agency steps up arrests, it faces an overcrowding issue. More than 51,000 immigrants were in ICE custody as of May 23, according to ICE data, though it is funded to hold only 41,500. Former ICE officials have said the agency can run over that allotment by only so much, and then only for a short amount of time, before it risks budget shortfalls and possible penalties from courts for living conditions that fall below court-mandated standards.
