[This post has been updated.]
One of President Biden's first acts on immigration is to suspend investigations, arrests, and deportations of most criminal aliens for the next 100 days. In a memo titled "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Procedures", sent on Wednesday to all immigration agency heads, Acting DHS Secretary David Pekoske announced the deportation freeze and new enforcement priorities that go into effect now. The memo imposes restrictions on immigration enforcement actions that are even tighter than those adopted (with disastrous results) by the Obama administration, and make the country a sanctuary not only for criminal aliens, but all who are here in defiance of our laws.
According to the memo, virtually all removals will stop for 100 days. In addition, only the following categories of illegal aliens will be subject to removal as of February 1, 2020:
- National security threats — those who have been involved in or are suspected of involvement in terrorism, or who are otherwise deemed a threat;
- Recent illegal border crossers — those who have arrived illegally after November 1, 2020; and
- Aggravated felons — those who are currently incarcerated for an aggravated felony conviction and who are determined to be a threat to public safety.
Pekoske says this is necessary because:
The United States faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century. In light of those unique circumstances, the Department must surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.
This gives the impression that ICE and other enforcement officers will be sent to help out at the southwest border as part of a "surge" of resources, but instead they are being told to sit on their hands and not do their jobs.
These priorities apply to all enforcement actions by all three agencies:
These priorities shall 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, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole.
In practice, this means that ICE must release criminal aliens and others in custody who are not covered in these definitions. This will include aliens convicted of domestic violence, sex offenses, drunk driving, theft causing loss of less than $10,000, vehicular homicide, an infinite number of misdemeanor crimes, and much more. It means that when USCIS refuses green cards or other benefits because the applications were fraudulent, that unqualified applicant will be able to stay anyway. It means that in the next 100 days, if a local police officer arrests a previously deported gang member, even one with a serious criminal history, for a new crime that is not an aggravated felony, ICE will not be able to take action to remove that gang member again.
This is a drastic and unprecedented order. According to ICE deportation records that I obtained through FOIA, only about 15 percent of the criminal aliens removed from the interior in 2018 (the latest year available) were classified as aggravated felons. Nevertheless, even non-aggravated felons caused serious problems here; the tens of thousands of non-aggravated felons removed that year had convictions for seemingly every other crime on the books, including assault, burglary, child molestation, drug offenses, weapons offenses, fraud, and much, much more.
Out of all interior deportations, the number of cases classified as "not aggravated felons" in 2018 was 83,804. This was 88 percent of all interior deportations.
In addition, Biden apparently has abolished use of the word "alien", which does not appear in the memo, in favor of the term "non-citizen." I did not notice the word "criminal" anywhere in the document either.
The memo includes an order for the development of protocols for the ICE director to sign off on every ICE action that takes place outside of a jail or prison. This forecasts an even deeper reduction in enforcement actions in sanctuary jurisdictions, which typically do not allow ICE to arrest criminal aliens — even aggravated felons — while they are in jail. That means in places like California, Chicago, New York City, and many other cities, ICE officers may find they can't make arrests inside the jails or out in the community, or anywhere.
President Biden has said that he doesn't support "abolishing ICE", but apparently he does support abolishing nearly all immigration enforcement.
Late on Thursday, Texas Governor Greg Abbott announced that the state has sent a letter to the Biden administration urging it not to implement this order, and said he will file a lawsuit to demand that immigration laws be enforced as written.