Wednesday, January 27, 2021
We've been following the Texas lawsuit challenging recent immigration decisions from the Biden administration. (Read here and here.) It's worth taking a step back to discuss what's got Texas all hot and bothered. It's a January 20, 2021 memo from Acting DHS Secretary David Pekoske entitled Review of and Revision to Civil Immigration Enforcement and Removal Policies and Priorities.
The memo opens: "This memorandum directs Department of Homeland Security components to conduct a review of policies and practices concerning immigration enforcement. It also sets interim policies during the course of that review, including a 100-day pause on certain removals to enable focusing the Department’s resources where they are most needed."
That pause doesn't apply across the board. Exempted is anyone who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.
What else is in the memo? Well, as the title of the memo suggests, all departments have 100 days to review their immigration enforcement polices and practices. And they're supposed to identify how to prioritize the use of their assets going forward.
The memo also contemplates a future framework for prioritizing deportations. (Prioritization existed during the Obama administration, but President Trump eschewed prioritization.) And while priorities may shift as a result of the 100-day internal analysis, the memo sets out some temporary priorities that will kick in on Feb. 1, 2021:
1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
2. Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
3. Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.