The New ICE Detention and Removal/Deportation Priorities

The following is a summary of the new ICE memo issued on February 18, 2021, relating to ICE’s detention and deportation priorities under President Biden. These policies are effective immediately for the next 90 days, and can impact current cases already in detention and/or Immigration Court. It basically reverts to pre-Trump enforcement policies.

What actions/cases are affected?

• Whether to detain a person
• Whether to issue or follow through on a Notice To Appear (NTA) that places a person into deportation/removal proceedings in Immigration Court
• Administrative violations
• Whether to stop, question or arrest someone for violating immigration laws
• Deferred Action and parole
• Executing a final deportation order (deporting a person)
• Allowing noncitizens to pursue relief from deportation (versus deporting them before they have the chance)

The good news—lower risks and dangers for peaceful people

For most “regular” people who otherwise have a clean record and are good citizens, ICE cannot go after them unless there is pre-approval in writing. This means no random stops due to race or suspicions of “illegal” status. Also, even if one person is targeted for an ICE raid, officers cannot also arrest the other members they may find in a household or building. Finally, ICE must maintain a record of requests and their responses for “prosecutorial discretion,” which means requests for exercising leniency and forgiveness-- this results in accountability to answer.

Priorities of enforcement: terrorists, certain criminals, and recent unlawful entries

As stated, most people are no longer subject to random arrest, detention and deportation/removal. But the following people who meet these descriptions will still be pursued by ICE:

1. National Security
   • Terrorism-related activities
   • Espionage-related activities
   • Anything else otherwise necessary to protect national security—note that criminal activity does not fall into this category
2. Border Security
   • Apprehended while attempting to enter unlawfully on or after November 1, 2020
   • Not physically present in the US before November 1, 2020
3. Public Safety—must meet both requirements:
   • Requirement One: Criminal activity:
     1. Aggravated felony at any time OR
     2. Gang offense OR
     3. 16 years or older and intentionally participated in gang activity

• • Requirement Two: Pose a threat to public safety. Factors to consider:
    1. Seriousness and recency of the criminal activity
    2. Personal and family circumstances
    3. Ties to the community
    4. Rehabilitation
    5. Potential immigration relief

Compelling reasons for removal of certain vulnerable people

ICE must show compelling reasons and get approval from their Field Office Director before removing/deporting the following vulnerable people:

• Elderly or serious physical/mental illness
• Currently on appeal with the Circuit Courts
• Filed only one Motion to Reopen in removal proceedings
• Currently waiting for an immigration benefit/relief and are eligible for the relief

ICE is reviewing its cases

ICE has been ordered to review detentions and deportation/removal cases to see if they should continue. This could result in people being released, or in cases being put on hold or even dismissed in Immigration Court.

What you should do now

Consult with a competent immigration attorney who is familiar with detention and removal cases—it may be possible to request release, postponement or termination of such a case. Hill & Piibe commonly handles detention/removal cases and can answer your questions about your own options, or those of your family and friends. If you or someone you know are arrested, detained or in removal proceedings, our litigation attorneys can assist you.