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DHS Issues Interim Enforcement and Removal Priorities

| Jan 25, 2021 | Biden Policies |

Just as President Donald Trump inaugurated his administration with a flurry of immigration related executive orders, President Biden has released a series of bold directives that immediately impact immigration policy and procedure. Within less than a week, President Biden has taken executive action to

  • Terminate the “Muslim Ban”
  • Fortify and preserve the Deferred Action for Childhood Arrivals (“DACA”) program
  • Extend Deferred Enforced Departure for Liberians
  • Halt further construction of the border wall
  • Issue new guidance pertaining to immigration enforcement within the interior

While all of these actions of import, perhaps the most significant one likely to be felt right away is the Administration’s reining in of its enforcement priorities. Under Acting Secretary David Pekoske’s January 20, 2021 memo, which is Department-wide guidance, the government will implement an immediate 100 day pause on removals of non-citizens with final orders of removal. 

Additionally, several key enforcement policies and practices—many of which arose during the Trump Administration–have been ordered rescinded while the Department of Homeland Security (“DHS”) undergoes a thorough, comprehensive review of its policies. In the interim, all departments have to abide by the interim civil enforcement guidelines, which represent a significant scaling back of the government’s previous practice of essentially going after everybody without legal status in the US. Immigrants who have lived in fear for the past four years are well aware that under President Trump’s direction, practically anybody who did not have authorized status was deemed a priority for removal, regardless of whether that individual had a serious criminal record. Effective February 1, 2021, pending the issuance of new guidance, DHS is ordered to focus its removal priorities on the three categories:

  • National Security threats: this includes individuals suspected of or have engaged in terrorism or espionage, or whose apprehension is otherwise necessary to protect the national security of the country
  • Border Security: foreign nationals caught trying to enter the US illegally on or after November 1, 2020 are in view here
  • Public Safety: under this category, the government’s priority is to remove foreign noncitizens incarcerated at federal, state or local prisons (or those released after January 20, 2021) who have been convicted of Aggravated Felonies.

 According to the memo, these priorities are to be adhered to when an official is exercising duties and may apply under a variety of circumstances. It will affect deciding whether to issue, serve, file, or cancel a Notice to Appear; deciding whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion; as well as whether to grant deferred action or parole. As is evident, these new priorities will dramatically affect ICE enforcement and detention operations; trial attorney prosecutorial discretion; and how the government works with state and local law enforcement. Of course, it should be noted that while this will be a general interim policy going forward, it does not create any rights for, grant immunity, or protect unauthorized immigrants from arrest and prosecution. That being said, non-citizens with status problems should see a noticeable difference in the way the government enforces the immigration law, and may have some needed breathing room to fix their legal issues. 

The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.

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