ICE Enforcement Priorities (Feb. 2021)
Guidelines in place until final ones are issued by DHS Secretary Alejandro Mayorkas, after consultation with relevant law enforcement agencies. Anticipated release in less than 90 days.
Guidance applies to all interactions by ICE officials including decision to stop, question, arrest, detain, prosecute, take into or release from custody, grant deferred action or other types of humanitarian relief, and act on a deportation order.
The question remains whether there will be large-scale reviews of court cases by ICE prosecutors to identify those who do not fall in these priorities and should have their cases closed to reduce court backlogs (such as the Obama Administration did in 2011).
Priorities for enforcement:
Someone is presumed to be a national security priority if:
Has engaged or is suspected of engaging in terrorism or espionage or their arrest is necessary to protect the national security of the United States.
The lack of transparency in how these grounds are determined and applied has caused many individuals to be stuck in indefinite processes or subject to arbitrary enforcement over the years.
Someone is presumed to be border security priority if:
They were arrested at the border on or after November 1, 2020 OR
They were not present in the US before November 1, 2020 (including those who entered the US without status since November 1, 2020).
This perpetuates the narrative that asylum seekers are dangerous and trying to evade laws. Border arrivals are not always security risks and approaches to handling those who approach our borders seeking protection should be far more nuanced.
Someone is presumed to be a public safety priority if:
They’ve been convicted of an aggravated felony (as defined in the immigration law); OR
They were convicted of a crime that requires, as part of the definition of the crime, participation in a criminal street gang OR is over 16 years old and intentionally participated in a gang or transnational criminal organization to further illegal activity.
This is a troubling normalization of the narrative around immigration and gang enforcement. Given how the Trump Administration exploited the fear caused by this narrative to make unfounded gang allegations based on racial and national origin profiling, and given the unreliability of gang databases and allegations of gang affiliations by law enforcement, this is a very problematic provision.
For more information and resources visit https://www.immigrantarc.org/gang-enforcement
NOTE TO PRACTITIONERS: See 18 USC 521(a) for definition of “criminal street gang” and note that a “conviction” for this purpose requires “an act of juvenile delinquency involving a violent or controlled substances felony.”
NOTE TO PRACTITIONERS: look at the mens rea (mental state) requirement of “intentional” in the Interim Guidelines! Look at your client’s convictions
Remember suppression and unreliability arguments, see e.g. CUNY practice advisory on suppressing gang allegations
This is the first time minors are considered a priority for detention. The memo does not provide any details about how ICE will handle the custody of these children accused of gang participation. If these children are deemed unaccompanied, they will be in the custody of ORR and will have some level of protection against the gang membership allegations in the form of a Saravia hearing. If they are deemed accompanied, they could be placed in ICE custody and the memo might not provide any protections comparable to the safeguards under Saravia.
Enforcement actions can be taken against individuals who are presumed to fall in the above categories without pre-approval. Headquarters and local office operations will coordinate enforcement actions and local offices will need pre-authorization from headquarters to carry out arrests against non-priority.
Prevents collateral arrests of other individuals present during the arrest of a targeted individual if those individuals do not fall in the priority categories.
This is a return to Obama Administration-era policies but much of the impact will be hard to assess because of the arbitrary and case-by-case nature of these types of enforcement actions.
ICE will continue to attempt to deport individuals in detention for over 90 days and will review individualized requests for release as they are made - this will include developing a process to track those requests.
Given how many individuals were detained by the Trump Administration and sped through deportation proceedings without meaningful ability to obtain legal help or put on a legitimate defense, this is disappointing.
Many people in detention do not have access to legal help. Even for those lucky enough to find lawyers through non-profit programs (such as New York’s NY Immigrant Family Unity Programs, which provide public defender-style services to indigent and low-income detained immigrants), most do not take on cases after a deportation order has been entered.
Pro-se individuals, which account for the large majority of detained immigrants, will not be able to avail themselves of this policy change.
State and local authorities will be notified of planned large-scale enforcement activities.
This suggests the Biden administration plans to continue enforcement raids against immigrant communities.
Weekly reports of arrests and enforcement activities will be submitted to leadership.
Experts who weighed in:
Camille Mackler, Immigrant ARC
Karla Ostolaza, Bronx Defenders
Alexander Holtzman, Hofstra Law Deportation Defense Clinic
Amy Belsher, New York Civil Liberties Union