On January 20, 2021, the newly designated Acting Secretary of Homeland Security issued a memorandum directing the Department of Homeland Security, including U.S. Citizen and Immigration Services and U.S. Customs and Border Protection, to conduct a review of their policies and practices concerning immigration enforcement.
Review of Enforcement Policies and Priorities
The Chief of Staff is directed to coordinate a Department-wide review of policies and practices concerning immigration reform. The Department is required to address numerous aspects of immigration enforcement, including (1) policies for prioritizing the use of enforcement personnel, detention space, and removal assets, (2) policies regarding prosecutorial discretion, (3) policies governing detention, and (4) policies regarding interaction with local and state law enforcement. The recommendations shall be completed within 100 days.
Interim Civil Enforcement Guidelines
Effective February 1, 2021, while awaiting for the completion of the above-referenced review, the Department of Homeland Security will have the following enforcement priorities:
- National Security – Individuals who have engaged in or are suspected of terrorism, espionage, or whose apprehension/arrest/custody is necessary to protect the national security of the U.S.
- Border Security – Individuals apprehended at the border or ports of entry attempting to unlawfully enter the U.S. on or after November 1, 2020 or were not physically present in the U.S. before November 1, 2020.
- Public Safety – Individuals incarcerated in the federal, state, and local prisons and jails released on or after January 21, 2021 who have been convicted of an aggravated felony pursuant to INA section 101(a)(43) at the time of conviction, and are determined to pose a threat to public safety.
These priorities apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions (such as whom to stop, question, arrest, detain, release; whether to settle, dismiss, appeal or join a motion; and whether to grant deferred action or parole. Additionally, all enforcement and detention decisions shall be guided by DHS’s ability to conduct operations and maintain custody consistent with applicable COVID-19 protocols.
Immediate 100-Day Pause on Removals
The newly-designated Acting Secretary of Homeland Security ordered an immediate pause on removals of any noncitizen with a final order of removal for 100 days to go into effect no later than January 22, 2021. The pause of removals applies to any noncitizen with a final order of removal except one who:
- 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 U.S.
- Was not physically present in the U.S. before November 1, 2020; or
- Has voluntarily agreed to waive any rights to remain in the U.S., provided they are fully aware of the consequences of waiver, and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
- For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.
No later than February 1, 2021, the Acting Director of ICE shall issue written instructions with additional operational guidance on the further implementation of this removal pause. The guidance shall include a process for individualized review and consideration of appropriate disposition for individuals who have been ordered removed for 90 days or more, as well as assessments of alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.