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Will ICE abide by the Biden Interim Enforcement Priorities?

On February 18, 2021, U.S. Immigration and Customs Enforcement (ICE) issued Interim Guidance for Civil Immigration Enforcement and Removal Priorities pursuant to the Interim Memo published on January 30, 2021 by the Department of Homeland Security, in accordance with President Biden’s Executive Order 13993. The purpose of the Interim Memo was to direct a review of civil immigration policies and priorities, to pause certain removals and to rescind ICE memoranda inconsistent with the President’s Executive Order. In addition, the Interim Memo directed ICE to issue interim guidance in accordance with the new enforcement priorities and the 100-day removal pause.

On January 26, 2021, Section C of the Interim Memo, the 100-day removal pause, was challenged by the State of Texas and enjoined by the U.S. District Court for the Southern District of Texas. However, Section B of the interim memo remained, and ICE has now issued its own Interim Guidance with revisions and clarifications to abide by the guidelines set forth in the Interim Memo. These guidelines shall remain in place for a period of about 90 days until Secretary Mayorkas issues new enforcement guidelines.

The three categories for determining cases of enforcement and removal priority remained the same while the criteria was slightly modified: 1) national security criteria now includes terrorism-related and espionage-related activities; 2) border security criteria was broadened to include any noncitizen who entered the US unlawfully on or after November 1, 2020; and 3) public safety criteria was revised to include anyone convicted of an offense for which an element was participation in a criminal street gang.

In addition to the aforementioned revisions, the ICE Acting Director obtained preapproval of the following revisions to the Interim Memo: authorization to apprehend presumed priority noncitizens who are encountered either during enforcement operations or during at-large enforcement actions, the inclusion of members of criminal gangs and organizations as presumed enforcement priorities, methods of evaluating whether a noncitizen nevertheless poses a public safety threat, delegation of approval authority and the importance of communicating with state and local law enforcement regarding at-large enforcement actions.

Furthermore, ICE noted that the Interim Memo and the accompanying Interim Guidance does “not require or prohibit the arrest, detention or removal of any noncitizen,” thus potentially undermining the purpose of the newly imposed guidelines. DHS maintains it will continue to act consistent with their mission of ensuring national security, border security and public safety. The guidance also allows ICE broad discretion in deciding whether to pursue an enforcement action so long as they are considering factors such as seriousness and recency of criminal convictions and sentences, law enforcement resources, and other relevant factors.

Lastly, DHS explains the actions that must take place in deciding whether to undertake an enforcement action or removal that does not meet the criteria outlined in the three priority categories. Any case that fails to meet the above-mentioned criteria must be preapproved by a Field Office Director (FOD) or a Special Agent in Charge (SAC). In seeking a preapproval by a FOD or a SAC, the officer must consider factors such as the noncitizen’s convictions and sentences while also keeping in mind the agency resources to be used and the time and place the action will take place. However, even with these guidelines in place, ICE speaks of exigent circumstances and demands of public safety that will allow them to enforce actions without first obtaining preapproval. In those cases, an ICE agent has the ability to carry out enforcement actions against other noncitizens and request approval subsequently. In essence, ICE is establishing guidelines to follow while retaining their power to continue aggressive and unrestrained enforcement practices.

In seeking to abide by the Interim Memo, the Interim Guidance outlines the steps the Director and ICE will take to ensure compliance with the guidance and consistency across ICE headquarters and facilities. The Interim Guidance sets in place a reporting method in which weekly reports of enforcement and removal actions will be generated and evaluated, to ensure productivity and management within the agency, and will be made available to the Office of the Secretary for review. Whether this type of reporting leads to transparency of ICE actions and how the agency consistently follows its own guidelines will be a question to ask in the future.

In further compliance with the Interim Memo, on Friday, March 5, 2021, ICE announced a new ICE Case Review (ICR) process for individuals who wish to pursue further review of their immigration cases with ICE. The ICR process will allow an individual to request further review of their case by a Senior Reviewing Official if their initial detention case review with the local Enforcement and Removal Operations (ERO) field office proves unsuccessful. Cases in which an individual is detained or pending immediate removal will be prioritized, according to the ICE news release. This is a welcome step to ensure that that the prior abuses and excesses in detaining individuals without little to no due process can be corrected, but again, whether Senior Reviewing Officials follow the guidelines is the detail that must be observed.

Although the fight for immigration reform continues, the Interim Memo and the new ICR process show a step in the right direction. President Biden has expressed his intent to enact further immigration changes and reform by helping modernize the immigration system, keeping families together and demonstrating a commitment to those seeking asylum and refugee. We are hopeful that under this administration, immigration law will be reformed to enable accessible and attainable relief for all applicants. If you are currently in removal proceedings, are interested in pursuing an immigration relief or need legal advice, please reach out to our office for an initial consultation.