Biden's new ICE guidelines could protect thousands from deportation


'At least 87%' of undocumented immigrants would be protected from deportation under the Biden administration's new criteria, according to an immigration expert.

The Biden administration has issued stricter guidelines for U.S. Immigration Customs Enforcement officials that experts say could protect "thousands" of people from being deported.

Announced on Feb. 18, the guidelines will take effect for up to 90 days as the agency develops longer-term policies. They include a new set of priority categories on who ICE should deport, and require officers to get pre-approval from supervisors if an individual does not meet the targeted criteria.

"There's a review process so that the field office directors are supposed to sign off on any arrest, detention, or deportation of someone who does not meet the priorities. ... They'll need field office directors' permission, and then those directors are supposed to report those up to the ICE director on a weekly basis," Randy Capps, director for U.S. research at the Migration Policy Institute, explained in a phone interview.

He added, "They're going to use that information to further review the final priorities that they issue, that [Homeland Security] Secretary [Alejandro] Maryorkas will issue within 90 days. So there's a possibility that people outside the priorities will get arrested, but they're going to track that very carefully."

Experts and immigration advocates say the impact of President Joe Biden's new ICE guidelines could be dramatic.

Naureen Shah, senior advocacy and policy counsel at the American Civil Liberties Union, told the American Independent Foundation in a phone call that the change could result in "at least thousands" fewer deportations within the 90-day span.

"It promises many fewer thousands of people have to live in fear of deportation," she said. "...There are 11 million undocumented people living in the United States, and if these priorities stay in place over the next four years, [past the 90-day span], then we're talking about millions of people. ... It's a bigger impact."

She cited data from Syracuse University's TRAC Immigration tracker, which showed 13,000 to 14,000 ICE arrests between April and June 2018 under the Trump administration's guidelines. A 2020 ICE enforcement and removal operations report also showed an average of about 6,850 ICE removals from July to September 2020, dipping somewhat due to the COVID-19 pandemic.

Since Biden's criteria is much stricter than Trump's, the data suggests there would be thousands fewer deportations, Shah said.

Capps said "at least 87%" of undocumented immigrants would be protected from deportation under Biden's criteria because they are similar to those of former President Barack Obama. He cited the Migration Policy Institute's 2015 study on the Obama administration's 2014 ICE priorities, which offered protection to "the vast majority—87 percent—of unauthorized immigrants" who did not meet the priorities.

The research director added that Biden's guidelines are even stricter than Obama's, so the percentage of those protected could possibly be even greater.

By contrast, under the Trump administration's ICE guidelines, close to 100% of undocumented immigrants were vulnerable to deportation, except those shielded under the Deferred Action for Childhood Arrivals program and others who were issued formal protections, such as asylum seekers, according to Capps. However, Trump tried to target those immigrants as well, by repeatedly attempting to undo DACA and lowering refugee admissions to historic lows.

Capps noted the new guidelines could "empower" the field directors of ICE to act as "negotiator[s]" and "play a role in authorizing additional operations ... collecting data and reporting it up."

"That can help diffuse some of that tension" between the ICE officers and Biden's Homeland Security political appointees, he said.

But Sandhya Nadadur, Detention & Deportation policy analyst at the California Immigration Policy Center, cautioned that the guidelines still require discretion from individual ICE officers.

"I think that those who are disproportionately impacted by our current immigration enforcement scheme — low-income, immigrant communities of color — will continue to suffer at the hands of individual ICE officers enforcing these priorities as they see fit," Nadadur told the American Independent Foundation in an email. "...I don't believe ICE officers have acted in the best interest of the immigrant community."

Nadadur and Shah called it "disappointing" that Biden is continuing the current criminal legal system. The ACLU policy counsel said although the new ICE guidelines are a step in the right direction and better than the two previous administrations (substantially Trump's), she is pushing for "a fundamental restart" to immigration enforcement, including criteria on who not to target, otherwise termed "affirmative relief."

"It shouldn't be about targeting immigrants, it should be about making this a country that welcomes people," Shah said, adding that she sees "hints" of this in Biden's guidelines, but "still [has] hopes" that it will get adopted permanently after the 90 days.

She separately noted in a statement that "deportation policies of both the Trump and Obama presidencies" were "harmful."

Republicans and former ICE officials, meanwhile, have been swift to criticize the guidelines, with Tom Homan, former acting ICE director under the Trump administration, lamenting to the Hill that officers had to now "call and ask their supervisor if they can enforce the laws that Congress enacted."

Sen. Tom Cotton (R-AR) went a step further, claiming in a tweet on Feb. 18 that the ICE guidelines were "the Biden administration's attempt to abolish ICE."

But Biden has not called for abolishing ICE, and instead outlined a plan to "ensure that Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) personnel abide by professional standards and are held accountable for inhumane treatment," with increased "resources for training and demand transparency in and independent oversight," according to his campaign website.

The president's new ICE criteria are part of his larger plan to secure "our values as a nation of immigrants" and reform the immigration system.

On Feb. 18, Democrats, incorporating Biden's proposals, unveiled the U.S. Citizenship Act, a comprehensive bill that would offer around 11 million undocumented immigrants a path to citizenship.

To get at least some parts of the broader bill "across the finish line," immigration experts and Democratic lawmakers are considering a "piecemeal" strategy.

Published with permission of The American Independent Foundation.