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AILA Doc. No. 21022334 | Dated February 26, 2021
This alert provides a brief summary of the 2/18/21 memo from ICE Acting Director Tae Johnson titled Interim Guidance: Civil Immigration Enforcement and Removal Priorities (“Johnson Memo”). The AILA EOIR/ICE Joint Liaison Committee released an earlier practice alert, which provided a summary of President Biden’s 1/21/21 Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities and Acting DHS Secretary David Pekoske’s 1/20/21 memo Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (“Pekoske Memo”).
The Johnson Memo is effective immediately and purports to be in support of the interim civil enforcement and removal priorities from the Pekoske Memo. It will remain in effect until DHS Secretary Mayorkas issues new enforcement guidelines, which the memo states will happen within 90 days.
The Johnson memo covers enforcement actions, custody decisions, the execution of final orders of removal, financial expenditures, and strategic planning. To the extent the new guidelines conflict with the Pekoske Memo, the Johnson Memo explicitly states that it controls. The Johnson memo notes that it does not implement or take into account the proposed 100-day moratorium on removals at Section C of the Pekoske Memo, which is currently enjoined.
The memo instructs that its interim priorities “shall be applied” to all civil enforcement and removal decisions including, but not limited to:
In addition to resource constraints, the guidance acknowledges that ICE has “the responsibility to ensure that eligible noncitizens are able to pursue relief from removal under the immigration laws.”
The Johnson Memo lists three categories of cases that are considered to be presumed priorities.
Practitioners should note the following regarding the Public Safety Category:
The memo instructs that the execution of removal orders must be supported by a compelling reason and have approval from the Field Office Director for cases involving noncitizens:
If a case meets the criteria for a presumed priority case, ICE officers do not need any further pre-approval for enforcement actions.
For cases not meeting the criteria for a presumed priority case, pre-approval from the Field Office Director or Special Agent in Charge is required. Requests for pre-approval for non-priority cases take into consideration:
The justification for taking an enforcement action in a non-priority case must be in writing. Also, pre-approval to carry out an enforcement action against a particular noncitizen does not authorize collateral arrests, except in exigent circumstances, generally limited to situations where a noncitizen poses an imminent threat to life or imminent substantial threat to property. Where an action is taken in such circumstances, the officer must request approval following the action within 24 hours.
The guidance notes that ICE will create and maintain a system for evaluating individual requests for prosecutorial discretion. Additionally, AILA members have reported that, following a denial of discretion at the local level, they have escalated the request to the following email box: EROOmbudsman@ice.dhs.gov. Some have received responses to their requests. However, it is unclear how this email address is being monitored, what information should be included with the request, and what response can be expected from ICE. AILA expects that ICE will release more information in the coming days and weeks about the email address and how to request and escalate cases.
*Special thanks for Aaron Hall, Vice Chair of the EOIR/ICE Joint Liaison Committee and the EOIR/ICE Joint Liaison Committee.
Cite as AILA Doc. No. 21022334.
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