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The first few days of the Biden Administration have brought many executive orders and agency actions. For people in immigration detention, the most critical of these actions are an executive order that President Biden signed on his first day in office and an accompanying DHS memorandum. The executive order revised ICE's enforcement priorities, refocusing on safeguarding families and immigrant communities and eschewing "harsh and extreme" enforcement methods of the previous administration. The DHS memo implemented new DHS interim enforcement priorities and placed a 100-day moratorium on deportations (The latter aspect of the DHS memo has since been enjoined, as noted below.)
These are big changes that we are still analyzing, but here's what we understand so far:
1. DHS’ new interim enforcement priorities are narrower than those that existed under Obama and are certainly narrower than those that existed under Trump. The interim priorities, going into effect on February 1st, focus on:
- People who recently arrived: anyone who entered on or after November 1, 2020 (plus people who can't prove that they arrived earlier)
- People with "aggravated felonies," a legal term in the immigration system that can include things like shoplifting
- People who are "threats to national security": people engaged in spying and terrorism
Depending on how these priorities are implemented, immigrants living freely in the U.S. who do not fall into these three categories may have a lower likelihood of being detained and deported. Attorneys will also be able to request release of their clients if they do not fall into these three categories and to ask that the government to exercise prosecutorial discretion in favor of their clients such as joining motions to reopen their cases, terminating their deportation proceedings, and more. CAIR Coalition made such requests when the Obama Administration announced its enforcement priorities in 2014, and we expect to make similar requests tailored the current priorities. Please contact your CAIR Coalition mentor if you would like to access our Obama-era samples and forthcoming sample requests under the new enforcement priorities.
2. 100-day moratorium on deportations - enjoined until at least Feb. 9, 2021
Under the moratorium that DHS set forth in its memo, most immigrants who were in the U.S. before November 1 of last year, with a few exceptions, would not be deported for 100 days. However, on January 26, a federal district court in Texas issued a temporary restraining order (TRO), finding that DHS likely violated the Administrative Procedure Act in announcing its limited 100-day pause on deportations. The TRO is nationwide in scope, but it does not affect other portions of the DHS memo and thus does not affect the interim enforcement priorities announced. We will closely follow this litigation and update our pro bono partners as developments occur.
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