The change indicates the extent to which the Biden administration has been able to move forward with its plans to reshape U.S. immigration enforcement despite a U.S. District Court preliminary injunction halting its deportation freeze.
The Biden administration has issued temporary guidelines to ICE officers narrowing their enforcement priorities to focus on national security threats, recent border-crossers and criminals with aggravated felony convictions who pose a threat to public safety. Officers must seek permission from senior supervisors in writing before attempting to arrest fugitives who do not fit those categories, a change that Biden officials say will make better use of the agency’s resources.
Republican lawmakers and critics of the administration have slammed Biden’s enforcement approach. The administration has not yet published any information on the impact of the narrower priorities, but supporters say the guidelines will help reform a troubled agency by allowing officers to target violent offenders and the most serious public safety threats.
Biden is under pressure from immigrant activists and advocacy groups galvanized during the Trump administration who want to see ICE transformed if not dissolved. Trump afforded ICE broad latitude to arrest immigrants and told the agency he wanted them to deport “millions,” an unrealistic goal that nonetheless put pressure on officers to boost their enforcement numbers.
On Tuesday the attorneys general of Arizona and Montana extended a lawsuit against the Biden administration seeking to block the new ICE enforcement priorities on the grounds their states will be harmed if more immigrants are released and not deported, particularly those with criminal charges or convictions that fall outside Biden’s new guidelines.
“Despite a clear mandate of federal statutory law, Defendants believe that there are literally no constraints whatsoever on their authority, and they may release individuals, including those charged with or convicted of crimes, even when immigration courts have already ordered their removal from the United States,” Arizona Attorney General Mark Brnovich (R) and Montana Attorney General Austin Knudsen (R) stated in their complaint, filed in U.S. District Court in Arizona. Brnovich filed a suit last month challenging the 100-day pause.
ICE arrests and deportations fell dramatically during the pandemic, as the agency took steps to protect its officers from potential exposure to the coronavirus while also reducing occupancy levels at immigration jails. Last month ICE carried out about 2,600 deportations, down from 5,583 in January, the latest figures show.
The data showing interior arrests by ICE is considered a more reliable gauge of enforcement activity by the agency, because it’s a metric more fully under its control. ICE officers averaged nearly 6,800 arrests in October, November and December, the last three full months of the Trump administration. In February that fell to about 2,500 arrests, the latest figures show.
To handle recent border-crossers, the Biden administration continues to rely on a Trump-era emergency public health order known as Title 42 that allows U.S. agents to rapidly return most migrants to Mexico. It has also carried out “expulsions” to other nations, including Haiti, triggering criticism from advocacy groups.
The American Civil Liberties Union agreed to hold off on a lawsuit seeking to halt expulsions of migrant families until later this month, but signaled this week that negotiations were stalled.
“We agreed to hold the Title 42 case for negotiations but we don’t intend to have discussions indefinitely, and thus far we’ve made no progress,” said ACLU lawyer Lee Gelernt.
The Biden administration issued a memo hours after taking office that attempted to pause deportations for 100 days so that the immigration agency could adjust to the new enforcement priorities. U.S. District Judge Drew Tipton swiftly halted the 100-day freeze after the state of Texas sued in protest, but Tipton did not agree to stop Biden’s deportation priorities.
A subsequent memo issued by ICE acting director Tae Johnson on Feb. 18 returned some discretion to ICE officers, but the current guidelines are more restrictive than rules implemented under former president Barack Obama. Homeland Security Secretary Alejandro Mayorkas is due to issue a finalized memo setting ICE priorities at the end of April.
During a hearing Tuesday, Tipton said he began to see within weeks through his own criminal caseload how the Biden administration’s interim priorities were taking effect.
He said ICE used to automatically deport felons arrested in Texas for crimes such as human smuggling. But instead, he said Tuesday, many were being released in the United States.
“Which was a surprise to everybody,” he said.
“We had felons who had finished their time,” said Tipton. “The response that we got from [ICE’s Enforcement and Removal Operations] or ICE was to release them.”
Tipton said he first noticed the shift a couple of weeks ago when a smuggler he had sentenced had asked to be deported home to Mexico and instead was dumped penniless on the streets of a Texas city. The man called his probation officer asking for help and they had to scramble, the judge said, to try to find him a bus ticket.
“He wanted to go home,” the judge said.
Instead, he said, the man disappeared and now he could be arrested and sent back to federal prison for violating the terms of his release.
Tipton said Biden’s new policies are “none of my business,” but he said they might be having “unintended consequences” and asked the Justice Department lawyers for guidance.
Because ICE won’t deport even felons who wish to return home, he said, “It’s causing a lot of confusion and a certain amount of chaos.”
Adam Kirschner, a lawyer for the Biden administration, said in court that each case could be different, so he would have to consider them individually. Tipton did not name any of the defendants in court.
The Justice Department declined to comment, spokeswoman Gail Montenegro said.
ICE did not immediately respond to a request for comment.
Todd Disher, the lawyer representing Texas in the case, said he had heard similar reports. Texas initially filed the lawsuit seeking to stop the deportation freeze, but later asked Tipton to also block the Biden administration from imposing the new priorities, calling them an “abdication” of Biden’s responsibility to enforce federal immigration law.
“We’re very concerned about it,” Disher said at a court hearing via Zoom. “We think this is a real issue that’s occurring right now.”
Tipton said he was unsure about what to do next in the Texas lawsuit. The Biden administration had not appealed his order, and hasn’t said if they will attempt to extend the 100-day deportation freeze when it expires on April 30.
“Do we still have a case or controversy on May 1?” Tipton asked the attorneys for the government.
“I do not know of any plans to extend it,” Kirschner said.
Mayorkas is scheduled to testify to the House Committee on Homeland Security on March 17, his first appearance before Congress since his confirmation. The subject of the hearing will be “the future of the Department of Homeland Security in the wake of the Trump Administration’s four years of mismanagement and misuse of the Department,” according to a statement issued Tuesday by committee chairman Bennie Thompson (D-Miss.).