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A Major Shift in Deportation Policy

On Feb. 18, 2021, U.S. Immigration and Customs Enforcement (ICE) released a memorandum shifting their enforcement priorities involving deportation.

This interim memo does a three main things:

• Identify priorities in who ICE should focus on for deportation
• Requires prior approval for any enforcement action that is outside of the priorities
• Directs DHS Secretary to issue more permanent guidelines within 90 days

Who are in the Priority Categories for Deportation Enforcement?

Priority Category 1: National Security

• People engaged in or suspected of terrorism, espionage or related-activities
• Or custody is necessary to protect national security of the U.S.

Priority Category 2: Border Security

• Anyone who unlawfully entered the U.S. on or after Nov 1, 2020.

Priority Category 2: Public Safety

• A person is presumed to be a priority if s/he poses threat to public safety and:
  • is convicted of an “Aggravated Felony” offense defined in INA 101(43)
  • or is convicted of an offense with element of criminal street gang activity
• Officers are required to consider certain factors to determine if the person “poses a threat to public safety.”

If a noncitizen is not presumed as one of these priority categories, ICE officers must get approval from the Field Office Director of their local ICE office before enforcement action can take place. “Enforcement Action” means detaining a person (from home or a jail) or issuing charges of removal for the purpose of deportation proceedings. Though this was released not too long ago, it will take ICE quite some time to truly digest and implement this memo, which scrupulously tells the organization how to prioritize enforcing immigration laws for deportation. There are a lot of exceptions and qualification factors that it covers. Then in 90 days, there will be new guidelines that require implementation. Our team at STERN Law is staying up to date with these changes and are keen to ensure our clients are well-informed about all it entails as time progresses.

Often, it can be easy to assume that this type of memorandum is a change in law. In this situation, it is not the case. This Interim Memo is not halting deportation, it is not a change in the law, and it does not ensure that all individuals who are currently in immigration custody will be released. However, the memo does work towards correctly identifying the limited number of people who are seen as “priorities” for removal. What’s more, it limits the number of people who were put into the deportation proceedings during the Trump administration.

For now, ICE is to use its resources to carefully find prioritized individuals, rather than detain anyone who is undocumented or has an alleged violation against immigration law. unfortunately, aggravated felony offenses are difficult to work through, and people with these charges may not even realize they have such a conviction. If you do have an aggravated felony offense, ICE will consider you as a priority and will issue a charge for deportation. As a result, ICE officers can arrive at the jail or your home to detain you.

If you do not have an aggravated felony conviction, but you have other types of criminal arrests or convictions, it does not guarantee your safety. In order to detain you, ICE must first seek approval from their office. Luckily, this process will result in less people being detained in jails because it will take ICE time to receive approval. Typically, if you are arrested in a criminal case but ordered released on bond or at the end of your case, you would be held for 48 hours as they wait to see if ICE will detain you. We predict that because of these priorities, and the likelihood that the approval process that ICE officers must follow will take longer than 48 hours, many less people will be detained by ICE overall.

It will take ICE some time to fully implement the Interim Memo, but we are hopeful they will follow this policy guidance. Keep an eye out for further updates from us regarding this shift in policy.