Tag: johnson memo

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U.S. District Court Judge Orders Injunction on Biden’s Priority for ICE Enforcement & Prosecutorial Discretion Memos

U.S. District Court Judge Orders Injunction on Biden's Priority for ICE Enforcement & Prosecutorial Discretion Memos
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If ICE were to immediately do an en masse arrest, detention and removal of millions of unauthorized immigrants from the United States, it will not only be an inhumane undertaking but there will also be an adverse socio-economic impact and a tremendous drain on government resources.

With a policy for a more compassionate immigration policy, President Biden issued policy directives through the Immigration and Customs Enforcement (ICE) agency early this year.

The Biden-Harris Administration came out with “priorities for enforcement” through ICE memoranda and directives:

(1) Pekoske Memo Dated January 20, 2021: Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities;

(2) Johnson Memo Dated February 18, 2021: Interim Guidance: Civil Immigration Enforcement and Removal Priorities

(3) Maher Memo Dated May 27, 2021: Implementing Interim Civil Immigration Enforcement Policies and Priorities;

(4) Trasvina Memo Dated May 21, 2021: Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

The Pekoske and Johnson Memos set interim guidelines for immigration enforcement, including providing guidance to ICE ERO officers on prioritizing enforcement actions, custody decisions, the execution of final orders of removal, and other actions. Priorities for enforcement listed those individuals who are threats to national security, border security public safety and those with convictions for aggravated felonies.

The Maher and Trasvina Memo, on the other hand, provided guidance on ICE exercise of prosecutorial discretion (PD) at all stages of ICE enforcement including, but not limited to, issuance of Notice to Appear, Cancellation of the NTA, Stipulation to Relief, Administrative Closure, Termination and Continuances of Removal.

Notwithstanding the compassionate and practical nature of the priorities for enforcement and the reasonable guidance provided on prosecutorial discretion as contained in the Memos, the States of Texas and Louisiana filed a lawsuit against the Biden Administration questioning the legality of the abovementioned Memoranda (State of Texas v. United States, 6:21-cv-16 (S.D. Tex. Aug. 19, 2021). As a result of the lawsuit, Judge Drew Tipton issued a preliminary injunction against ICE restraining them from enforcing the ICE Memos. The injunction was temporarily suspended on August 23, 2021 until August 30, 2021.

Before the issuance of the injunction order, several immigrants who are in removal proceedings applied for Prosecutorial Discretion based on the relevant ICE Memo resulting in closure and sometimes termination of removal proceedings. With the injunction, the ICE priorities for enforcement and the prosecutorial discretion based on the subject Memos may not be enforced in the interim pending litigation. But this does not necessarily mean that the immigrant in removal proceedings may not avail of the request for prosecutorial discretion and other applicable reliefs based on ICE long standing policy. It will be best to seek legal advice from professional legal counsel for existing remedies that may still be available pending the final decision on the lawsuit.

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The “Johnson Memo”: ICE to Prioritize Enforcement

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The U.S. Immigration and Customs Enforcement (ICE) Acting Director Tae Johnson released its ICE memorandum known as the “Johnson Memo” and laid out three priorities for enforcement:

  • national security,
  • border security and
  • public safety.

The new memo applies to every stage of enforcement, from deciding whether to arrest someone to deciding whether to deport them.

Presumed priorities are defined in the memo under these 3 categories.

For the third presumed priority under public safety, the individual must have been convicted of an aggravated felony or trigger the gang participation prong and must pose a threat to public safety. ICE officers are instructed to consider various factors before deciding to arrest or deport. These factors include: first, the extensiveness, seriousness, and recency of the criminal activity; and second, presence of mitigating factors, including, but not limited to:

  1. Personal and family circumstances;
  2. Health and medical factors;
  3. Ties to the Community;
  4. Evidence of rehabilitation; and
  5. Whether the individual has potential immigration relief available.

Prioritizing enforcement is a dramatic departure from the prior administration policy of deporting families who have lived for years in the United States, terrorizing immigrant communities and a reported increase in “collateral” arrests of individuals who were separated from their families.

The Johnson Memo is only an interim memo, and the Department of Homeland Security (DHS) Secretary will publish new rules for ICE officers, likely within 90 days. If you or any family member is at risk of removal or arrest, or has a final order of removal, it will be best to contact our office to determine if you fit the criteria for a presumed priority or not. Since this Memo does not completely take out ICE’s authority to apprehend, detain and remove individuals, one may want to have his or her case analyzed to determine whether it falls outside the presumed priority and if available reliefs are available.