ICE Sets Out Temporary New Guidelines for Deportation / Removal

  • In the whirlwind of change that has marked the beginning of the Biden administration, ICE has received some changes to their guidelines for removal / deportation that have been effective as of February 18, and put forth with very little fanfare.

    These changes are in effect until “Secretary Mayorkas issues new enforcement guidelines. The Secretary has informed me that he will issue new guidelines only after consultation with the leadership and workforce of ICE, U.S. Customs and Border Protection, and other Department of Homeland Security agencies and offices. He anticipates issuing these guidelines in less than 90 days”.

    Here is what was said in the ICE press release:

    “By focusing our limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission,” ICE Acting Director Tae Johnson said in a release.

    “Like every law enforcement agency at the local, state, and federal level, we must prioritize our efforts to achieve the greatest security and safety impact.”

    These measures put in place to help ICE prioritize certain enforcement and removal actions over others.

    Why did ICE need interim guidelines?

    Biden’s Executive Order 13993 entitled Revision of Civil Immigration Enforcement Policies and Priorities came out on January 25, 2021. This order contained four main points, it:

    1. Asked for a comprehensive Department-wide review of civil immigration enforcement policies
    2. Established interim civil immigration enforcement priorities for the Department
    3. Instituted a 100-day pause on certain removals pending the review
    4. Rescinded several existing policy memoranda, including two ICE-related memoranda, and directed that (because of this) ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

    What are the changes that we can expect to how ICE will deal with immigrants moving forward?

    Overall, these changes are narrowing the focus of what is considered a priority in terms of ICE efforts towards deportation, taking the focus off domestic labor, and placing it more on those who are considered a public safety threat. Those living in the U.S. undocumented will be deemed a public safety threat if they’ve been convicted of an aggravated felony, a term that includes violent crimes but can include some serious but nonviolent offenses. The memo also encourages a focus on those involved in gang activity.

    ICE has laid out three priority areas for deportation / removal. People that fall into this category will be “presumed” to be a threat to national security and public safety. There are three main areas — National Security, Border Security and Public Safety

    1) National Security

    A person will be presumed to be a national security threat if:

    1. The individual is suspected of engaging in terrorism or terrorism-related activities.
    2. He or she has engaged in or is suspected of engaging in espionage or espionage-related activities; or
    3. His or her apprehension, arrest, or custody is otherwise, necessary to protect the national security of the United States.

    2) Border Security

    A noncitizen will be presumed to be a border security threat if:

    1. He or she was apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after November 1, 2020; or
    2. He or she was not physically present in the United States before November 1, 2020.
    3. To be clear, the border security priority includes any noncitizen who unlawfully entered the United States on or after November 1, 2020.

    3) Public Safety

    An immigrant will be presumed to be a public safety threat if:

    1. He or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the INA6, •or
    2. He or she has been convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a),
    3. Or is not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.

     

    Lest we forget, Joe Biden was Vice President under the Deporter in Chief, Barack Obama.

    The Trump immigration enforcement priorities were documented by seemingly everyone with a “media” platform for four years.

    A wide net was cast to seek detention and removal in the last administration.

    However, Obama deported far more immigrants than Trump.

    The above described New Guidelines appear to be – like much of what Biden has done so far – a return to the immigration policies of his former boss.

     

     

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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