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Deportation in Full Swing: ICE Priorities in Limbo

ICE is no longer limited to deportation enforcement priority categories, so they are pursuing unrestricted deportation for those who are undocumented or have lawful status but have been arrested or convicted of criminal laws.

This is still in flux among the federal courts, but currently ICE will not follow the policy memo issued by the Biden administration in September 2021. That policy memo instructed ICE to focus on only:

  • Recent entries since 11/2020 
  • “Threats to public safety" based on certain criminal arrests or convictions
  • National security threats & terrorism

The Disconnect Between ICE & President Biden’s Administration

Essentially, ICE is unrestricted in how they enforce deportation laws again, just like under the Trump administration. After President Biden and his administration instructed ICE to prioritize the three categories mentioned above, non-U.S. citizens took comfort in knowing that they were not a focus for deportation for minor offenses, like driving without a license. In February of this year, Acting ICE Director Tae D. Johnson released a memo that said “detainers” were meant for non-U.S. citizens who met the criteria asserted by President Biden. If you were arrested for a traffic offense or other minor misdemeanor, with exceptions, you were unlikely to have ICE place a detainer on you for removal enforcement. 

A “detainer” is also called an “ICE hold.” When local law enforcement officers take custody of a non-U.S. citizen, they inform ICE of the arrest. ICE can then request that local law enforcement officers hold the non-U.S. citizen for an additional 48 hours so that ICE can initiate the deportation process if they so choose. Director Johnson’s memo limited these holds for recent entries, public safety threats, and national security issues. 

Texas Attorney General Ken Paxton filed a lawsuit against President Biden and the narrow enforcement policies. He wanted a federal judge to force the Department of Homeland Security to take any non-U.S. citizens that had been arrested for any crime (regardless of the severity) into custody. Paxton’s position is that President Biden’s guidance is unlawful. 

Those in support of the categories point out that prosecutorial discretion is a component of our legal system. Government resources should be used for only serious violations. Many people have also viewed the detainers as unconstitutional. .  

Ultimately, the federal courts agreed with Attorney General Paxton. President Biden has stated he intends to continue to fight the issue. 

The Impact on Non-U.S. Citizens 

The future of the enforcement priorities is unclear, but as of today, they are gone. After being charged with a crime, anyone who is "deportable" under the law will probably be brought in for deportation. Police will contact ICE, and ICE may request that local law enforcement officers hold the person arrested for another 48 hours. ICE detention is then likely to initiate removal proceedings before the Immigration Court.

If you are a non-U.S. citizen charged with a crime, you must contact a crimmigration attorney immediately. While this lawsuit continues, you must assume that any criminal offense can lead to deportation proceedings. Don’t make uninformed assumptions about what could happen, and be prepared. Contact Stern Law, LLC to schedule a consultation.

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