Posted on February 8, 2021

New Biden Rules for ICE Point to Fewer Arrests and Deportations

Nick Miroff and Maria Sacchetti, Washington Post, February 3, 2021

U.S. Immigration and Customs Enforcement is preparing to issue new guidelines to agents this week that could sharply curb arrests and deportations, as the Biden administration attempts to assert more control over an agency afforded wide latitude under President Donald Trump, according to internal memos and emails obtained by The Washington Post.

While ICE’s new operational plans are not yet final, interim instructions sent to senior officials point to a major shift in enforcement. Agents will no longer seek to deport immigrants for crimes such as driving under the influence and assault, and will focus instead on national security threats, recent border crossers and people completing prison and jail terms for aggravated felony convictions.

“Generally, these convictions would not include drug based crimes (less serious offenses), simple assault, DUI, money laundering, property crimes, fraud, tax crimes, solicitation, or charges without convictions,” acting director Tae Johnson told senior officials in a Thursday email advising them on how to operate while new guidelines are finalized.

The Biden administration is attempting to reorient ICE, a law enforcement agency that has seen its priorities swing wildly from one administration to the next. But frustrated ICE officials say the proposed changes will take away agents’ discretion and severely constrain their ability to arrest and deport criminals.

Agents seeking to arrest fugitives outside of jails and prisons will need prior approval from the agency’s director in Washington justifying the decision while explaining how the enforcement action “constitutes an appropriate allocation of limited resources,” according to a draft memo circulating at the agency.

“They’ve abolished ICE without abolishing ICE,” said one distraught official who spoke on the condition of anonymity because that person was not authorized to speak to the media. “The pendulum swing is so extreme. It literally feels like we’ve gone from the ability to fully enforce our immigration laws to now being told to enforce nothing.”


ICE officials chafing at the new rules under Biden say they were expecting major changes, but not the kind of restrictions on agents that have been outlined in preliminary memos and emails obtained by The Post.

The interim guidelines show how ICE’s priorities have pivoted since Biden took office.

A Jan. 20 memo issued by DHS ordered a 100-day pause on deportations — which a federal judge soon halted — and set temporary enforcement priorities while the agency underwent a review. Johnson, the acting ICE director, sought to clarify the new rules last week in an email to officials unsure of how to operate in the meantime.

Immigrants should be considered public safety threats if they have an institutional record of violent behavior, well-documented gang affiliations or aggravated felony convictions, Johnson told senior staff. Such crimes would include murder, rape, child abuse and major drug offenses, and agents should prioritize those released after the issuance of the Jan. 20 memo, he wrote.

In instances where the aggravated felony is more than 10 years old and not the reason for a recent arrest, that individual would not be considered a public safety threat, Johnson indicated. Gang tattoos or records showing “loose affiliation with gang activity” would also not meet the narrower criteria.


{snip} Texas Attorney General Ken Paxton, a Trump ally facing state securities fraud charges himself, filed the federal lawsuit that overturned the 100-day pause, resuming deportations.

Texas has since asked U.S. District Judge Drew Tipton, a Trump appointee, to toss the entire memo, which could affect the new priorities, calling it a “total abdication of their responsibility” to enforce the law.


Emails among senior immigration officials show them eschewing most enforcement activity while waiting for more permanent guidance to be issued in the coming days.

ICE officials also canceled Operation Talon, a nationwide operation targeting sex offenders subject to deportation that had been planned in the final weeks of the Trump administration, emails show.


The leadership change at ICE has made the agency more responsive to the legal and immigrant advocacy groups that were shunned by the Trump administration, emails show.

When ICE scheduled a deportation flight to Africa for earlier this month, lawyers and activist groups sent urgent requests to political appointees at the White House and DHS, asking them to intervene.

Their request asked for the administration to give the deportees more time to pursue humanitarian claims in immigration courts, noting that the flight to majority-Black countries had been scheduled during Black History Month, emails show. Within hours, the acting director of ICE wrote to senior staff, stopping the deportations.