ICE Announces Case Review Process In Light of Its New Deportation Polices
On March 5, 2021, U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) announced its newly implemented process for individuals deportation case reviews. ICE, the federal agency responsible for civil immigration enforcement and for the removal of certain non-citizens, established the ICE Case Review to allow non-citizens the chance to demonstrate to ICE why they believe their case does not qualify as one of ICE’s enforcement, detention, and removal priorities. The Case Review process offers an opportunity for non-citizens and their lawyers to request that ICE exercise “prosecutorial discretion” in certain cases, and “to resolve questions and concerns, consistent with law, policy, and the interests of justice.” Although there is still much to be learned about ICE’s new case review process, this is encouraging news for immigration advocates. ICE stated that non-citizens must contact their local ICE field office for initial consideration of prosecutorial discretion. Once received, a Senior Reviewing Official will review the request. ICE stated that it shall prioritize adjudication of requests made by individuals detained by ICE or with removal imminent. The news comes shortly after ICE’s new enforcement priority memo was released on February 18. Acting Director Tae Johnson released the memo, which now sets forth interim guidelines explaining what ICE’s current enforcement and removal priorities are. The new policy memo, effective immediately at the time of its release, covers all ICE programs, officers, custody decisions, strategies, and executions of deportations. Acting Director Johnson specifically mentions in the February 18 memo that he anticipates new, more permanent guidelines less than 90 days from the date of that memo, so there is still much to be learned about ICE’s true intentions moving forward. Nonetheless, the February 18 interim guidelines are informative. The memo grants ICE: (1) authorization to apprehend presumed priority noncitizens in-at-large enforcement actions without advance approval; (2) the inclusion of current qualifying members of criminal gangs and transnational criminal organizations as presumed enforcement priorities; (3) authorization to apprehend without prior approval other presumed priority noncitizens who are encountered during enforcement operations; (4) how to evaluate whether a noncitizen who is not a presumed priority nevertheless poses a public safety threat and should be apprehended; (5) the further delegation of approval authority; and (6) the importance of providing advance notice of at-large enforcement actions to state and local law enforcement. Priority category 1 involves individuals considered to be national security risks. The memo states that a non-citizen is presumed to be one if he or she is suspected of or has engaged in terrorism, espionage, or activities related to either. Furthermore, individual who pose a threat to the United States are also categorized as first priority. Priority category 2 involves individuals who pose a “border security.” Individuals apprehended by DHS attempting to enter the United States unlawfully, or who were otherwise not physically present in the United States before November 1, 2020, are deemed to be part of priority category 2. Priority category 3 involves criminal non-citizens, including individuals convicted of “aggravated felonies” under immigration law and individuals who participated in criminal organized gangs. ICE officers and agents do not need to seek pre-approval for enforcement or deportation of individuals in the above-mentioned three categories. However, any other enforcement actions, including arrests and deportation, will require pre-approval from supervising ICE officers. ICE stated that it shall continue to review these policies internally and make any changes it deems necessary to ensure the priorities are followed.ICE’S Interim Enforcement and Deportation Priorities
Breaking Down the Interim Enforcement Priority Categories
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