On February 18, ICE Acting Director Tae Johnson issued a memo titled Interim Guidance: Civil Immigration Enforcement and Removal Priorities (“Johnson Memo”).
The Johnson Memo is effective immediately and purports to be in support of the interim civil enforcement and removal priorities from the Pekoske Memo. It will remain in effect until DHS Secretary Mayorkas issues new enforcement guidelines, which the memo states will happen within 90 days.
The Johnson memo covers enforcement actions, custody decisions, the execution of final orders of removal, financial expenditures, and strategic planning. To the extent the new guidelines conflict with the Pekoske Memo, the Johnson Memo explicitly states that it controls. The Johnson memo notes that it does not implement or take into account the proposed 100-day moratorium on removals at Section C of the Pekoske Memo, which has been enjoined.
The memo instructs that its interim priorities “shall be applied” to all civil enforcement and removal decisions including, but not limited to:
In addition to resource constraints, the guidance acknowledges that ICE has “the responsibility to ensure that eligible noncitizens are able to pursue relief from removal under the immigration laws.”
The Johnson Memo lists three categories of cases that are considered to be presumed priorities:
To be a presumed priority under the Public Safety Category, a noncitizen must have been convicted of an aggravated felony or trigger the gang participation prong, and separately, must be judged to pose a threat to public safety. In evaluating whether the person poses a threat to public safety, the memo instructs officers to consider:
The memo instructs that the execution of removal orders must be supported by a compelling reason and have approval from the Field Office Director for cases involving noncitizens:
For cases not meeting the criteria for a presumed priority case, pre-approval from the Field Office Director or Special Agent in Charge is required. Requests for pre-approval for non-priority cases take into consideration:
The justification for taking an enforcement action in a non-priority case must be in writing. Also, pre-approval to carry out an enforcement action against a particular noncitizen does not authorize collateral arrests, except in exigent circumstances, generally limited to situations where a noncitizen poses an imminent threat to life or imminent substantial threat to property. Where an action is taken in such circumstances, the officer must request approval following the action within 24 hours.
This interim guidance anticipates that it will be superseded by guidance from the Secretary of Homeland Security in the coming months. In the meantime, if you have questions about how this guidance might affect your situation, please contact our office to schedule a consultation with one of our attorneys.
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