Originally Published in The Hill
Rebecca Beitsch - February 18, 2021
The Biden administration rolled out new instructions to Immigration and Customs Enforcement (ICE) officers Thursday, temporarily restricting the causes agents can rely on for initiating deportation.
The enforcement priorities, which will be in effect for up to 90 days while ICE develops long-term guidelines, shrinks the types of convictions that allow for someone to be deported as a public safety threat.
The guidelines additionally allow for deportation of those who are deemed a national security threat due to terrorism or espionage concerns or who illegally crossed a U.S. border after Nov. 1 of last year.
The policy will also create more oversight of ICE agents, requiring pre-approval before seeking to deport anyone that doesn’t meet the new criteria.
“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."
The order specifically notes agents are not required to arrest or remove anyone, and that ICE officers are expected to “exercise their discretion thoughtfully.”
“This is a great first step in terms of laying out clear priorities in terms of going after national and domestic threats for deportations, focusing on gang members and cartel members and terrorists as opposed to going after Juan the gardener or Maria the maid, which made no sense,” Domingo Garcia, president of the League of United Latin American Citizens, told The Hill.
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.
But the directive also encourages ICE officers to weigh a broad set of factors before pursuing deportation.
“In evaluating whether an individual poses a threat to public safety, officers and agents are to consider the extensiveness, seriousness, and recency of any criminal activity, as well as mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, and evidence of rehabilitation,” ICE wrote in its release.
Though seeking to limit how criminal history can be used in the deportation process, officers will still hold considerable discretion, making it difficult to determine how the memo will be used in the field going forward.
That concerns the American Civil Liberties Union (ACLU).
“While the Biden administration rightly acknowledges that immigrants are our family members, our coworkers, and our neighbors, for now it has chosen to continue giving ICE officers significant discretion to conduct operations that harm our communities and tear families apart,” Naureen Shah, senior advocacy and policy counsel for ACLU, said in a release.
“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 priorities use sweeping and overbroad presumptions of threat that have for decades resulted in biased profiling,” Shah added.
The ACLU also criticized the portion of the policy allowing the arrest of anyone that crossed the border illegally after Nov. 1, something they say assumes that all recent border crossers are threats and conflicts with Biden’s attempts to redesign the asylum process.
ICE officers will also need to get approval from their superiors before they can proceed on cases that don’t strictly meet the criteria set out in the order — a departure that will require greater oversight from ICE’s 24 field offices.
“I think the new memo reflects what is likely a deep internal struggle between career personnel and new leadership in the department and agency which is trying to change the course for an agency with 7,000 staff,” said Jorge Loweree, policy director with the American Immigration Council.
“There will certainly be growing pains along the way. It’s clear accountability is going to be a challenge. Getting ICE to be able to put into place a new enforcement paradigm after years when they’ve been able to do whatever they want to is no easy task.”
Tom Homan, who served as the acting director of ICE under former President Trump, said the Biden administration is putting too many barriers on ICE officers.
“They’ve got to call and ask their supervisor if they can enforce the laws that Congress enacted," Homan said of the additional review required in some cases.
“To say they care about public safety threats but to leave lots of criminals off that list is ridiculous,” he added.
“If you cross the border just don't get convicted of an aggravated felony and you’re off free. It’s another enticement for people to come to the United States.”