Administration Must Urgently Release Those Still in Detention, End Criminalization of Immigrants, and Welcome Asylum Seekers

CHICAGO (January 21, 2021) — On his first day in office, President Biden announced a 100-day moratorium on deportations marking a significant shift in the U.S. government’s approach to immigration.

National Immigrant Justice Center Executive Director Mary Meg McCarthy responded to these actions with the following statement:

“NIJC is thrilled that President Biden is pausing deportations. This action will provide an opportunity for the Biden administration, in partnership with impacted communities and advocates, to reimagine how our country can welcome migrants and manage a fair immigration system while prioritizing human rights, racial justice, and family unity. In the immediate term, it will keep families together and protect people in our communities from the threat of detention and deportation during the pandemic. NIJC applauds this step, and we are eager to work with the incoming administration toward these goals.

“Most critically, we urge the administration to release the thousands of people who remain detained and vulnerable to COVID-19 in the abusive immigration detention system. At the top of our minds are NIJC clients like Mariana, a mother who has been detained in immigration detention and separated from her two children for nearly two years after the family fled political persecution in West Africa. Mariana has health concerns that put her at dire risk for coronavirus, yet her needless detention persists. Mariana and the nearly 15,000 people also at risk in immigration detention must be at the forefront of the administration’s decision-making in the coming days.”
 

Summary of the DHS moratorium and interim enforcement priorities memo

Hours after the inauguration, the White House issued an Executive Order rescinding the sweeping order on interior enforcement that President Trump issued in 2017 and stating the administration’s intent to “reset the policies and practices for enforcing civil immigration laws to align enforcement” with the new administration’s core values.

The Department of Homeland Security (DHS) followed the Executive Order with a policy memo announcing a 100-day deportation moratorium and interim enforcement priorities. The memo:

• Announces a 100-day pause on all deportations beginning on January 22, with some exceptions, including people engaged in or suspected of engaging in terrorism or espionage or who pose a danger to national security. The moratorium also does not apply to people who arrived in the United States on or after November 1, 2020. People who want to be deported will be able to waive their right to remain.
• Requires a DHS-wide review of all enforcement practices to be completed within 100 days.
• Announces an interim policy, during the period of the agency-wide review, shifting DHS enforcement priorities toward a more limited population of individuals than has been contemplated in decades. However, the administration will continue to consider the following groups of people as “priorities” for immigration enforcement: 1) people engaged in or suspected of terrorism or espionage or who pose a national security risk; 2) people who have arrived in the United States on or after November 1, 2020; 3) people released from federal, state and local prisons and jails on or after January 20 who have been convicted of an offense defined by federal immigration law as an “aggravated felony” and are determined to pose a threat to public safety.
   

Steps the administration must take before lifting the moratorium

NIJC is eager to work with the administration to ensure that the promise offered by the moratorium is realized. Toward that end, we encourage the White House, DHS, and Department of Justice (DOJ) to ensure that the following benchmarks are met before the moratorium is lifted.

1. End immigration detention:

• DHS must quickly and dramatically reduce the number of people in Immigration Customs Enforcement (ICE) detention, beginning with immediate agency action to review the file of every person in detention and consider release. During the interim period, ICE must release all transgender people, HIV+ individuals, pregnant women, children under 18, and people at heightened vulnerability to COVID-19. The agency also must halt all transfers from prisons and jails during COVID.
   
• DHS must stop detaining children and end the use of family detention, without exception.
   
• The administration should appoint a taskforce or commission to compose a plan for the full phase-out of detention, even after the pandemic.
   
• DHS should terminate or set in motion termination of ICE contracts with county jails and private prisons, beginning with the facilities with the worst track records of abuse and corruption. DHS should refrain from entering into new detention contracts.
   
• DHS and DOJ must put guidance in place, including promulgation of rules when necessary, that adopts a presumption of liberty by placing the burden on the government to meet a high evidentiary standard to continue a person’s detention, and that ensures everyone in ICE custody has access to individualized consideration of release. These actions will require the reversal of previous guidance issued by the Board of Immigration Appeals in Matter of Guerra and Matter of Joseph, two decisions that unfairly require immigrants to meet a steep burden to prove eligibility for release.

2. End destructive and unjust enforcement:

• The administration should issue a final, bold prosecutorial discretion policy that embraces the agency’s full authority to defer removal and provide protection and work authorization for undocumented communities.
   
• DHS must end its reliance on the criminal system as a proxy for immigration enforcement priorities in its final policy guidance, to avoid importing the structural racism of the criminal system directly into U.S. immigration policy.
   
• DOJ should formally suspend criminal prosecutions for unauthorized entry and reentry, recognizing that these prosecutions are rooted in a racist history and layer an additional punishment on arriving migrants.  

3. End the police-to-deportation pipeline:

• The administration must terminate all 287(g) agreements (including Warrant Service Officer agreements) and terminate Secure Communities and the use of ICE detainers across all programs.
   
• The administration must eliminate funding conditions that require state and local cooperation with federal immigration law enforcement.
   
• The administration should appoint a commission to study and analyze the extent of information sharing through databases and technology and take steps to significantly reduce such information sharing.

4. Welcome asylum seekers at the southern border:

The moratorium should not be lifted until the administration has put a system in place to ensure the ability to welcome and process asylum seekers into the country without the use of detention and in partnership with community-based support programs. That program must be in accordance with public health guidelines, international treaty obligations, and Congress’s commitments under the Refugee Act of 1980. All people in the Migrant Protection Protocols program must be paroled into the United States and permitted to seek asylum from the safety of their homes and communities. The coercive agreements with Guatemala, Honduras, and El Salvador that forced those countries to receive asylum seekers from the United States must be terminated. The process of making refugees wait in line in Mexico to enter the United States must end. And the web of midnight rulemaking by the previous administration, which was designed to end access to the asylum system, must be revisited.

NIJC’s policy and immigration law experts are available for comment and analysis of Biden administration executive orders and legislative proposals. To arrange an interview, contact Tara Tidwell Cullen at (312) 833-2967 or ttidwellcullen@heartlandalliance.org.