On February 18th, the Biden administration announced an interim enforcement memorandum directed toward the Immigration and Customs Enforcement agency. The memorandum outlines the enforcement priorities of ICE officers as set by the former acting secretary David Pekoske. The Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities is effective immediately and establishes interim guidance for several agencies. The memorandum remains subject to change as recently approved Department of Homeland Security Secretary, Alejandro Mayorkas anticipates offering new enforcement guidelines and measures to ICE. The first Hispanic DHS secretary plans on releasing a new enforcement memo after he consults with agency heads.
The interim memorandum requires ICE officers to ask for pre-approval from direct supervisors before executing a deportation. The criteria includes anyone that is a national security threat, recent border crosser, or a convicted felon. The interim memo was followed by several executive actions to improve agency functions following a tumultuous reign under former President Donald J. Trump. On inauguration day, President Biden issued an executive order that “articulated the administration’s baseline values and priorities” as it related to the enforcement of civil immigration laws. Biden’s appointment of Secretary Mayorkas was a symbol of the much-needed change that is to come at the agency. Secretary Mayorkas is committed to issuing new guidelines within ninety days after carefully consulting with leadership at The United States Customs and Border Protection and Immigration and Customs Enforcement agencies.
Former Acting Secretary Pekoske issued an interim memo on January 20th highlighting four comprehensive priorities of the administration as it pursues the implementation of civil immigration laws. The first of which required a department-wide review of all civil enforcement policies to ensure they aligned with the Biden administration’s views on enforcement of immigration law. The second priority was to organize an interim guidance for the Department of Homeland Security and subsequent agencies on civil immigration enforcement measures. The third priority was a hundred-day moratorium on deportations but subsequent legal challenges in a Texas District Court resulted in it being blocked. The fourth priority rescinded several policies and orders under the previous administration that were “inconsistent” with the Biden administration’s immigration priorities. Each priority has been aimed at improving the functions of the Department of Homeland Security and inviting accountability.
Immigration and Customs Enforcement officials have been directed to “prioritize” deportations due to the agency’s financial and resource constraints. The interim guidance highlights several complex and evolving issues that prevent ICE officials from broadly exercising deportations. They include the ongoing health concerns as it relates to the Coronavirus pandemic, eligible undocumented immigrants should be able to exercise their rights in immigration removal proceedings, and specific relationships with sovereign nations when following guidance measures.
President Trump politicized the department functions to gain political favor amongst his supporters. The executive actions undertaken by President Biden are in effect a reversal of the last four years. Even when President Trump argued for mass deportations in the millions, his administration failed to deport anywhere near as many immigrants compared to his predecessor. The interim guidance issued at the command of President Biden’s administration seeks reversal, but if left unchecked ICE officials will revert to excessive deportations without following civil immigration laws.
HS will continue to execute its discretion as it relates to prioritizing deportations. The interim memo defines
specific removal deportations:
- When to execute a final order for removal
- When to issue a detainer for an undocumented immigrant or to assume custody of said person
- When to issue or cancel a “Notice to Appear”
- When to offer deferred action or parole
- When to detain an immigrant or release them under certain conditions
- When to question, stop, or arrest an undocumented immigrant
The interim memo highlights specific criteria that Immigration and Customs Enforcement officials should consider before executing a deportation order on an undocumented immigrant. Officers must consider if the immigrant has criminal convictions and whether the undocumented immigrant is a threat to public safety and national security. There are also various other conditions and criteria that should be considered.
As defined in the interim memo, the following are key priorities in the execution of civil immigration laws under the Biden administration until a new memorandum is in effect. The following are cases in which individuals will be prioritized for deportation and not have to face pre-approval by a department supervisor. Only in the following cases will an immigrant be subject to deportation without an official review of their circumstances.
Prioritizing Deportations of National Security Threats:
- The individual has engaged in terrorism or other terroristic activities
- The individual has or continues to engage in espionage against the United States
- The deportation or removal of the individual will improve the national security of the United States
Immigration and Customs Enforcement will be able to classify individuals deemed a national security threat as it relates to terrorism-related activities. This will give ICE the discretion to prioritize the deportation of such individuals alleged of these activities without written approval.
Prioritizing Deportations of Border Security Threats:
- Not physically present in the United States on or before November 1st, 2020
- Removal priority if the individual was apprehended at a port of entry on or after November 1st, 2020
Individuals who utilize false documentation or illegally crossed a port of entry, or otherwise avoided the legal entrance of entry are subject to deportation by ICE if the individual entered after November 1st, 2020.
Prioritizing Deportations of Public-Safety Threats:
- An individual convicted of an aggravated felony
- An individual’s criminal activity and history will be factored in the decision
- An individual that is not 16 years of age or younger that has actively and willingly participated in criminal gang activities or an individual convicted of gang-related offenses
The “extensiveness and seriousness” of the criminal activity must be considered by an ICE officer. The type of aggravated felony will be a factor in meeting deportation criteria. Some exceptions can be made due to family and medical circumstances that would otherwise cause significant harm. Immigrants with pending appeals or immigration relief are not subject to this term. An individual deemed as a public safety threat and meets all criteria will subsequently be deported according to the interim memo.
Even when the prior criteria are not met, an immigrant is still subject to removal. The interim memo specifically highlights that a written justification for removal must be presented and thus authorized for approval if the above criteria are not met. If the above criteria are met, officers do not need to ask for pre-approval by a supervisor. As these are presumed priority cases, ICE officials still maintain control of deeming certain individuals a National Security, Border Security, or Public Security threat.
What if I’m around another “noncitizen” slated for deportation?
According to the interim memo, undocumented immigrants who were encountered in the execution of removal for a particular undocumented immigrant and do not meet the above criteria cannot be taken into custody. Thus a separate removal order must be separately secured if they fall out of the above criteria. But, the memo also highlights that certain situations may permit an overruling of the preapproval process as it relates to public safety and if it were impractical. These specific cases were defined as an individual possessing a direct threat to property or may be considered dangerous. The officer may conduct the enforcement action but still will need to obtain approval within a 24 hour period.
What else does the interim memo do?
Weekly Reporting on Removals
- The memo requires weekly reporting of all enforcement and removal actions undertaken by Immigration and Customs Enforcement (ICE) officials
- Executive associate directors will need to report records of arrests to the Office of Policy and Planning, the Office of Deputy Director, and the Office of the Director
- The reports will have to offer specific details including location and applicable criteria met for removal
- The weekly reporting is aimed at a transparent execution of justice
- The memo also allows ICE the ability to conduct mass raids of individuals who have old convictions
- This could potentially lead to higher deportations and is a downfall of the memo
The memo is focused on fostering increased transparency while promoting dialogue between agencies. The Biden administration is taking charge in enforcement actions, ensuring deportations are adequately executed while meeting specific requirements. The preapproval of individuals outside of these criteria by ICE field supervisors ensures immigrants’ rights aren’t taken advantage of. The priority criteria permits ICE to continue its role but with substantial oversight.
The Law Offices of James A. Welcome will continue to closely follow this issue. The Biden Administration has promised significant changes to our immigration system. Our mission is to further inform you of the issues most important to you and your case. Although the interim memo remains in effect for at least the next several months, agency-wide policy changes are necessary to remove the politicization of the Department of Homeland Security.
The memorandum released by the Department of Homeland Security ends short of acting as a full repudiation of the draconian measures undertaken by the former president. President Biden must act in the interest of undocumented immigrants to ensure their rights are upheld and that agencies such as ICE do not obstruct the execution of justice. Our firm will continue to update this story as it progresses.
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