Biden just made it easier for immigrants to challenge ICE arrests


One expert calls it a 'good first step,' but says more needs to be done.

The Biden administration on March 5 announced a new case review process under U.S. Immigration and Customs Enforcement that would provide a simpler way for immigrants to appeal their arrests.

Formally called the ICE Case Review process, it allows immigrants who have been arrested to submit a request via email ( for an ICE senior reviewing official to reevaluate their case under President Joe Biden's new ICE removal guidelines.

Biden announced stricter guidelines for ICE authorities back on Feb. 18, which included a new set of priority categories on who ICE should detain or deport, effective for 90 days. The Department of Homeland Security is expected to develop longer-term policies in the meantime.

Immigration experts told the American Independent Foundation when the priorities were announced that the more targeted criteria could protect "thousands" from deportation, a stark contrast from the Trump administration, which implemented much broader priorities on who ICE could target.

Those who are arrested and detained, however, will now have the opportunity to make their case against deportation, if they do not fit the new targeted priorities.

Local ICE field offices will be responsible for reviewing email requests, with a senior official in charge of making any final determinations, the agency said. ICE will also prioritize immigrants in its custody or those set to be imminently deported.

Tae D. Johnson, ICE's acting director, said in a statement on March 5, "The case review process provides an avenue for noncitizens and their representatives to request further review of the individual facts and circumstances of their case in light of ICE’s priorities for enforcement, detention, and removal, offering additional transparency into the immigration process."

Randy Capps, director of U.S. research at the Migration Policy Institute, said in a phone interview that the Biden administration is effectively streamlining the process for immigrants to appeal their cases by channeling them into one email.

"Just as a starting point, it is similar to but a more formalized way of doing what was available at the end of the Obama administration," after the Trump administration cut off the email requests completely, Capps said.

"I think in a lot of cases, this is meant to be somewhat of a rapid-response situation," he continued, noting it would benefit immigrants arrested who want to immediately appeal their case, those detained who are enduring poor conditions in the detention centers, or those facing deportation. "This is definitely a much faster process and designed to be."

Many of the immigrants facing deportation are likely to have already wound their way through the court system, with some having appealed their deportation to the Executive Office of Immigration Review's Board of Immigration Appeals under the Justice Department.

Donald Trump, during his time in the White House, stacked that appeals board with judges who issued deportation orders against immigrants in 87% of the cases, significantly higher compared to non-Trump appointees, who did so in 58% of cases, according to Reuters.

Now, those whose appeals for deportation relief were denied by the immigration courts may submit a request to the ICE Case Review process if they believe that the ICE priorities under Trump do not apply to them under Biden's new criteria.

Jorge Loweree, policy director at the American Immigration Council, noted in a phone interview that while ICE cannot cancel deportation orders, which only the court can do, the agency can issue a stay of removal to extend their time in the United States. He said the stays are typically for periods of 6 months to one year at a time but can be renewed. (It's unclear how likely the stays are to be granted.)

He added the new ICE Case Review process is certainly helpful for immigrants represented by counsel and those not in custody but may not be realistic or sufficient for those who are detained and shut off from the outside world.

"It's a good first step," Loweree said. "There's a great deal of work that still needs to be done."

A toll-free ICE ERO Detention Reporting and Information Line (1-888-351-4024) is also available for the public to ask questions and voice concerns about ICE enforcement and removals.

"ICE remains dedicated to providing multiple lines of communication for noncitizens or their representatives, to discuss individual cases," Johnson said.

Published with permission of The American Independent Foundation.