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Biden’s New ICE Guidance Completely Backtracks from 100-Day Deportation Moratorium Promise, Expands Enforcement Priorities


US President Joe Biden holds a face mask as he participates in a CNN town hall at the Pabst Theater in Milwaukee, Wisconsin, February 16, 2021.

The Biden administration has deported several hundred immigrants since taking power of the federal government. Those deportations are ongoing. On Thursday, the Department of Homeland Security (DHS) formally backtracked from President Joe Biden’s pledge to halt deportations during his first 100 days in office.

Acting ICE Director Tae Johson told ICE employees on Thursday that recently-confirmed DHS Secretary Alejandro Mayorkas would issue new enforcement guidelines within the next 90 days “after consultation with Department personnel and external stakeholders.”

Thursday’s guidance solidifies deportation discretion granted by the administration to ICE and significantly expands the agency’s ability to effectuate detentions and deportations.

The seven-page guidance can generally be characterized as a return to form viz. the enforcement priorities of the Obama administration.

Under the memo, ICE is directed to focus on three tiers of “enforcement and removal” (deportation) priorities: (1) undocumented immigrants who are deemed to be or who are suspected of being a national security threat; (2) undocumented immigrants who entered or attempted to enter the country “on or after November 1, 2020;” and (3) undocumented immigrants convicted of certain felony and gang-related offenses.

Under Trump, enforcement priorities all-but vanished as ICE was essentially given carte blanche and encouraged to deport as many undocumented immigrants as agency staff saw fit.

There are also a few key differences between Biden’s enforcement priorities and those under Obama. Whereas Biden’s crime-focused deportation guidance (priority number three) calls for the deportation of those with “aggravated felonies” (a broad suite of federal crimes in the context of non-U.S. citizens), Obama called for the deportation of people with a “significant misdemeanor” as the baseline.

Still, immigration rights advocates and activists are livid about the about face from the nascent Biden administration.

“The memo is a disappointing step backward from the Biden administration’s earlier commitments to fully break from the harmful deportation policies of both the Trump and Obama presidencies,” American Civil Liberties Union senior advocacy and policy counsel Naureen Shah said in a statement.

“The interim enforcement priorities detailed today import the injustices of the criminal legal system and will lead to continued disproportionate deportations of Black and Brown immigrants,” the ACLU’s statement continued. “The priorities use sweeping and overbroad presumptions of threat that have for decades resulted in biased profiling and harmful immigration consequences for Black and Brown people, including Muslims. The priorities presume that all recent border crossers are threats, in total contravention of President Biden’s commitment to ensuring that people seeking asylum are treated with dignity.”

“We expect better from the Biden administration,” Shah added.

“We believe that this memo only makes it easier for ICE to detain and deport immigrants, a clear back-track from President Joe Biden’s campaign promises and earlier Executive Orders,” RAICES, the largest immigration legal services non-profit in Texas, said.

Under the new guidance, ICE agents are on alert that “no preapproval [is] required for presumed priority cases.” So, if any undcocumented immigrants fall into any of the three above-noted enforcement priority groupings, ICE agents and officers “need not obtain preapproval for enforcement or removal actions that meet the [outlined] criteria for presumed priority cases, beyond what existing policy requires and what a supervisor instructs.” This means that ICE agents do, in fact, have the authority to pursue non-priority cases that fall outside of the three main categories—but such enforcement and deportation actions must be signed off on by a superior.

The guidelines also offer exceptions to the preapproval guidelines for “exigent circumstances” and “the demands of public safety,” which are left undefined in the memo. Additional caveats for ICE agents include the ability to “conduct the enforcement action” and then request approval “within 24 hours following the action.”

Notably the memo also expands the administration’s enforcement priorities.

“To the extent this guidance conflicts with the Interim Memo, this guidance controls,” the new guidance notes, referring to the original Jan. 20 immigration “moratorium” memo.

The administration’s crime-focused priority section originally applied to “[i]ndividuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this [January 20, 2021] memorandum.” The new ICE guidance, however, applies to any undocumented immigrants with certain convictions who have ever been incarcerated at any point in their lives.

Biden first promised to halt all deportations during his first 100 days in office during a CNN town hall just before the Nevada caucuses.

The transcript of his remarks:

We have a right to protect the border. But the idea — and by the way, nobody — and some of you are going to get mad at me with this — but nobody is going to be deported in my first 100 days until we get through the point that we find out the only rationale for deportation will be whether or not — whether or not you’ve committed a felony while in the country.

Biden reiterated his support for a moratorium during a March 2020 primary debate between himself and Sen. Bernie Sanders (I-Vt.).

In August 2020, Biden campaign spokesperson Andrew Bates told The Intercept’s Aida Chávez that the moratorium “absolutely remains his position” and “will not change at any point.”

But that position actually changed immediately upon taking office.

The actual text of the memo authored by then-acting DHS secretary David Pekoske was a far cry from Biden’s campaign promise.

Instead of a blanket pause on deportations, the policy only applied to undocumented immigrants who arrived prior to November 1, 2020. Any undocumented immigrants subject to deportation after that date were left out of the equation. So were any who “voluntarily agreed to waive any rights to remain in the United States.” Immigration attorneys at the time protested to note that ICE agents often obtain such “voluntarily” agreements under threats and duress.

Also cut out of the limited-nature “moratorium” were any undocumented immigrants who had “engaged in or [who were] suspected of terrorism or espionage, or otherwise” believed to pose a national security danger. Additionally, the head of ICE was given discretionary authority to institute deportations at-will “following consultation with the [agency’s] General Counsel.”

Since that order was issued, however, deportations generally showed no signs of stopping.

Furor erupted after the Associated Press ran a story on Feb. 1 titled: “Hundreds deported under Biden, including witness to massacre.”

The 46th president’s administration, and many of its defenders on social media, have cited a Jan. 26 court order from the Southern District of Texas by claiming that continued deportations are necessary, mandated and that their hands are tied by Judge Drew Tipton. But that’s simply not true.

The AP story by Nomaan Merchant noted the obvious incongruity in the second sentence:

A federal judge last week ordered the Biden administration not to enforce a 100-day moratorium on deportations, but the ruling did not require the government to schedule them. In recent days, U.S. Immigration and Customs Enforcement has deported immigrants to at least three countries: 15 people to Jamaica on Thursday and 269 people to Guatemala and Honduras on Friday. More deportation flights were scheduled Monday.

“Scheduling deportations is still a matter of discretion for the agency,” Cornell Immigration Law Professor Steve YaleLoehr told the AP at the time.

On Thursday, that discretion was formalized and extended—for the next 90 days at least; which will run slightly over the originally-promised 100-day deportation moratorium.

The disconnect between promised words and the reality of executive power became clear earlier this month as the Biden administration scheduled hundreds of Black non-citizens for deportation during Black History Month in a widely-criticized move that prompted a huge outcry from Black lawmakers in Washington, D.C.

Immigrants’ rights organizations also took note.

“Last week, the Biden admin deported hundreds of Jamaicans [and] Haitians,” the Black Alliance for Just Immigration (BAJI) noted via Twitter on Feb. 3. “BAJI is not surprised that under the Biden administration, Black people are getting deported to Haiti, Cameroon, Congo, Angola, and other Caribbean and African countries. Past and future deportation flights to Haiti are an abomination. The U.S. has a historical obligation to Haiti and must support undocumented Haitians by providing permanent protections immediately and ending detention and deportations.”

Law&Crime reached out to both the White House and ICE for comment but no response was forthcoming at the time of publication. An ICE spokesperson later provided a link to their press release and a transcript of a media call announcing the new guidance.

[image via SAUL LOEB/AFP via Getty Images]

Editor’s note: this article has been amended post-publication to include a response from ICE.

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