ICE starts 100-day moratorium on deportations for certain immigrants in U.S.

U.S. immigration authorities on Friday began implementing a 100-day moratorium on deportations of certain immigrants already in the country as part of a major shift in immigration enforcement policy under President Biden.

The freeze, a pledge Mr. Biden made during the campaign, will temporarily shield most immigrants facing deportation from being removed from the U.S. until May, as long as they entered the country before November 1, 2020. 

Immigrants suspected of terrorism or espionage — as well those deemed to pose a threat to national security — won’t benefit from the moratorium, which was authorized by a memo signed by acting Homeland Security Secretary David Pekoske. The head of Immigration and Customs Enforcement can also decide to make an exception to the deportations freeze, and immigrants may volunteer to be deported.

Pekoske’s directive also issued new interim guidelines, set to take effect February 1, that will instruct immigration agents to focus on arresting and deporting immigrants assessed to pose a risk to national security; migrants recently apprehended along U.S. borders; and those convicted of certain crimes who have been released from federal, state or local jails.

Collectively, the deportations moratorium and new arrests priorities mark a seismic change from the Trump administration‘s immigration enforcement regime, which rendered most undocumented immigrants in the U.S. vulnerable to being picked up by ICE agents and deported.

“We’re talking about a complete 180 on what the last administration compelled ICE to do,” John Amaya, a former top ICE official during the Obama administration, told CBS News, adding that “it’s affording the agency an opportunity to return to a sense of normalcy.”

Progressive and immigrant rights groups who pushed Mr. Biden to adopt the deportations moratorium as a campaign pledge during the Democratic presidential primary have applauded his administration for following through on it. 

“We’ve never seen anything like this, and it’s really a tribute to the work of immigrant justice advocates for the last several years to educate and pressure the people who are now in charge,” Naureen Shah, a senior advocate and policy counsel at the American Civil Liberties Union, told CBS News.

Pro-immigration And Anti-deportation Protest in Philadelphia
Fifty immigrants, joined by community activist occupy the lobby of whats believed to house the office of then presidential hopeful Joe Biden, during a pro-immigration and anti-deportation protest in Philadelphia, PA on July 10, 2019.  NurPhoto

Some Republicans have strongly denounced the pause in deportations. On Friday, Texas Attorney General Ken Paxton sued the Biden administration over the moratorium, alleging in a lawsuit filed in the U.S. District Court for the Southern District of Texas that DHS violated an agreement brokered during the Trump administration that purportedly requires the department to advise the state of changes in immigration policy before they’re implemented.

During an appearance Thursday on Fox News, Thomas Holman, who led ICE for a year and a half during the Trump administration, criticized the moratorium and new enforcement guidelines, claiming they would shield immigrants with serious criminal convictions from deportation.

But Amaya said he has heard from former colleagues at ICE who expressed relief that leaders “with sensibilities, reasonableness, with a rational approach to governing are back in the driver’s seat.” He noted that under the new rules, ICE retains broad discretion to arrest those deemed to pose a threat to public safety, as well as anyone in the U.S. without legal permission.

Pekoske’s memo also ordered ICE to review all aspects of immigration enforcement — arrests, deportations, detention and relationships with local law enforcement — while keeping the coronavirus pandemic and limited department resources in mind. Pekoske asked for any recommendations on new policies within 100 days.  

“I think we’re going to land somewhere that is going to be palatable, not only for the officers of the agency, but certainly for the community,” said Amaya. “It’s going to assure everyone that not only are the most dangerous elements within society being removed, but we’re also giving everyone who deserves an opportunity at due process to be seen and be heard in front of a judge.”

Amaya said some ICE officers might disagree with the new policies, but won’t interfere with carrying them out. “They’re sworn to uphold the law and execute on the directives, absent unconstitutional directives,” he said. “They may disagree. But they’re going to execute them.”

Shah suggested the Biden administration should use the next 100 days to scrap agreements that allow local law enforcement to detain immigrants with immigration violations and limit the use of so-called “detainers” — requests for local authorities to hold undocumented immigrants who would otherwise be released after being charged so that ICE officers have time to apprehend them.

ICE, Shah added, should also review the cases of the more than 14,000 immigrants it is currently detaining, including 200 migrant parents and children being held in family detention facilities. The agency has the authority to release the undocumented immigrants, asylum-seekers, green card holders and other individuals in its custody because it detains them all on civil immigration grounds, not to execute criminal sentences imposed by judges.

During the campaign, Mr. Biden vowed to discontinue for-profit immigration detention and use other ways to ensure immigrants attend court hearings, for instance, by connecting them with case managers and lawyers.

“They should take a hard look at whether or not they need these more than 200 detention facilities open around the country that cost taxpayers enormous amounts of money and that have led to some many horrific abuses and deaths,” Shah said, citing the 21 deaths of ICE detainees that occurred in fiscal year 2020, the highest in 15 years.

Mr. Biden’s deportation moratorium and limits on ICE arrests not only represent a dramatic shift from President Trump’s policies, but also a significant departure from the practices of President Obama, whom he served as vice president. During Mr. Obama’s tenure, ICE issued memos to limit arrests and exempt certain immigrants from deportation, but it also carried out more than 3 million deportations — a record high.

University of Denver professor César Cuauhtémoc García Hernández, who studies immigration enforcement, said Mr. Biden’s approach can be attributed to the way the conversation about immigration has evolved.

“I think it reflects the different politics of immigration that exist in 2021, versus when President Biden last walked into the White House as vice president,” García Hernández told CBS News. 

García Hernández also credited “efforts by community organizations and activists across the country to make sure that immigration was not forgotten, to hold candidate Biden’s feet to the fire and remind him of the severe consequences of the Obama administration’s immigration policies.”