CURRENT GOVERNMENT GUIDELINES

How do they affect people in immigrant detention?

Updated December 3, 2021

In January 2021, the Biden administration issued some executive orders that affect deportation and enforcement. These orders required the entire Department of Homeland Security (DHS), which includes ICE, to review their policies and decide what they should change.

DHS has now issued new, permanent policies. Starting on November, 29, 2021, these new policies are in effect. Any older policies no longer apply. Here is what we know (and what we still don’t know) about how these new policies will affect people in detention in California and their fight for liberation. We will continue to update this document as we get more information.

New Enforcement Priorities (starting November 29, 2021)

“Enforcement” means:

  • Arrest/detention

  • Decisions about whether to open an immigration court case

  • Decisions about who stays in detention and who gets released

Three groups are considered priorities for enforcement. The three priority groups are:

  1. National Security: people that the U.S. government thinks are involved in terrorism/spying or who the government thinks pose a national security risk

  2. Border Security: People who are caught by border patrol trying to enter the U.S. without permission OR people who are arrested in the United States and entered without permission on or after November 1, 2020

  3. Public Safety: No one is automatically in this group. Instead, ICE should look at all the positive and negative things in a person’s case to decide who is in this group. Below is a list of some things they can consider. They may consider other things also, and the final decision is up to immigration’s judgment in each case.

Positive things:

  • A person is very young or old

  • A long time living in the United States

  • Mental health challenges that led a person to commit a crime

  • A physical or mental condition that needs care or treatment

  • Being a victim of a crime in the U.S. 

  • Family that will suffer if a person is deported, for example because person provides care or financial support

  • Eligibility for immigration benefits that could stop deportation, like asylum

  • Military or other public service by a person or their immediate family

  • Evidence of rehabilitation since a person committed a crime, and if the crime was not recent

  • Conviction was vacated or expunged

Negative things – these all relate to arrests by the police or criminal convictions:

  • How serious a crime was and the sentence

  • How much harm a crime caused, and how serious the harm was

  • How sophisticated (complicated) the crime was

  • If a gun or dangerous weapon was used, or threatened to be used

  • A serious prior criminal record

Other things:

  • Whether “enforcement” is in the public interest. This could be a positive or negative factor. 

  • Apart from deciding if a person is a priority, before taking enforcement action officers should also consider:

    • Enforcement actions can’t be discriminatory. This means that officers can’t take enforcement actions based on:

      • race, religion, gender, sexual orientation or gender identity, national origin, or political associations

      •  A person’s exercise of their First Amendment rights (for example, filing complaints or grievances about detention conditions) 

    • If a person is a witness in a court case or investigation in a case about workplace rights or housing, that is a positive factor

What this Means for People in Detention

  • On March 5, 2021, ICE announced a case review process for people who believe they are not in one of the priority groups. 

  • That means that people in detention can ask ICE to review their case, and release them. CCIJ has created a sample release request.

  • The request should go to the local ICE ERO field office. People in detention can give the request to a Deportation Officer or other ICE officials at the detention facility.

  • After sending a request to the local ICE ERO field office, people in detention can also email the ERO Senior Reviewing Official at ICEcasereview@ice.dhs.gov.  If you want to email on behalf of someone in detention, that person must complete an ICE Privacy Waiver to give ICE permission to talk to you about the case. 

  • Even people who are in a priority group can request that ICE use its discretion and not take enforcement action. This includes requesting release from detention.

What this Means for People with Immigration Court Cases

On May 27, 2021 OPLA (Office of the Principal Advisor) announced how it will implement  new priorities for enforcement. OPLA lawyers are the prosecutors in Immigration Court. Local OPLA offices for each Immigration Court will issue more instructions. Below is what we know about their new policies: 

  • People in detention, who have a case with the Immigration Court, can ask OPLA lawyers to dismiss their case if they are not a priority

  • Everyone can ask OPLA lawyers to support their application or not appeal their case

  • People who can ask the judge for a bond hearing can also ask OPLA lawyers to give them a bond, if they have new evidence ICE didn’t have. 

  • OPLA lawyers are different from ICE deportation officers. They are the government attorneys that come to Immigration Court. If you want to make a request of OPLA, you should do it through your lawyer, or in Immigration Court.

 

What can OPLA lawyers do?

  • For people who are not in priority groups, OPLA lawyers have the power to:

    • Not file or to cancel a Notice to Appear (the document that starts an Immigration Court case)

    • Tell the judge they support an application or motion

    • Not file an appeal 

    • Decide to release a person

    • Grant deferred action or parole (a type of permission to remain in the U.S.)

  • Even for people not in priority groups, OPLA lawyers don’t have to do these things. They will still weigh good factors (such as family ties, education, work history, lawful immigration status) against bad ones (like a criminal record or immigration violations)

Dismissing a case Even after an Immigration Court case begins, OPLA lawyers can dismiss a case. Generally, if there are no other serious negative factors, they will dismiss cases for:

  • U.S. military service members or their immediate family members

  • People who have a way to get legal status outside of Immigation Court (for example, through a petition filed by a family member

  • People helping law enforcement as a witness or informant<

  • Lawful Permanent Residents (green-card holders) who have lived in the U.S. for many years, especially if they came when young and have family ties

  • People who have compelling humanitarian factors, including people who:

    • Have a serious physical or mental health conditions, their family members, and their caregiver

    • Are elderly

    • Are pregnant

    • Came to the U.S. as children or are still children

    • Have been of victims domestic violence, human trafficking or another serious crime

    • Are participating in another type of important legal case, like a family court case or a civil lawsuit

 

In every case (even priority cases):

  • OPLA lawyers should not appeal in cases where they will probably lose the appeal

  • Where a person has filed an application with the Immigration Judge, and they clearly qualify, OPLA lawyers can let the judge know that by joining in a motion to grant that application. 

    • For example, if a person applied for asylum and has a strong case, they can ask the OPLA lawyer to join in a motion, so that they both ask the judge to approve the asylum application.

For people who are eligible for a bond hearing:

  • Even if ICE originally denied a bond, OPLA lawyers can agree to a bond for people who are eligible for a bond hearing (an Immigration Judge must still approve the bond)

  • To request that OPLA lawyers agree to a bond, the person must have new evidence that shows they are not dangerous and/or will show up for future immigration appointments and court. 

What this means:

  • On March 5, 2021, ICE announced a case review process for people who believe they are not in one of the priority groups.

  • That means that people in detention can ask ICE to review their case, and release them. CCIJ has created a sample release request.

  • The request should go to the local ICE ERO field office. People in detention can give the request to a Deportation Officer or other ICE officials at the detention facility.

  • After sending a request to the local ICE ERO field office, people in detention can also email the ERO Senior Reviewing Official at ICEcasereview@ice.dhs.gov.  If you want to email on behalf of someone in detention, that person must complete an ICE Privacy Waiver to give ICE permission to talk to you about the case. 

  • Even people who are in a priority group can request that ICE use its discretion and not take enforcement action. This includes requesting release from detention. 

This information is not intended to be legal advice.