Local immigration lawyers are asking Immigration and Customs Enforcement to release some of their detained clients, now that the Biden administration is implementing new enforcement and deportation priorities that are more lenient than former President Donald Trump’s. But they’re not sure yet whether ICE will fully comply.
President Joe Biden's 100-day moratorium on removals was temporarily blocked last month by a court in Texas. But attorneys say that doesn’t apply to Biden’s enforcement priorities, which were to take effect on February 1st.
On Monday, an ICE spokesperson said the agency “is now implementing the civil immigration enforcement priorities directed by the U.S. Department of Homeland Security (DHS) on Jan. 20, to focus its limited resources on threats to national security, border security and public safety.”
Biden’s January order marks a clear break with former President Trump’s policies, when all undocumented immigrants became a priority for enforcement. The new president’s priorities are similar to those during former president Barack Obama’s second term, when the stated focus shifted to deporting felons not families because ICE didn’t have the resources to go after everyone in the country illegally.
ICE said operational guidance on Biden’s new priorities has been provided to all enforcement and removal officers, but it wouldn’t release these details to Gothamist/WNYC because it said they’re “law enforcement sensitive.”
That worries local immigration advocates who are seeking to release clients now.
“So far, we haven't had any acknowledgement from ICE that anything has changed,” said Andrea Saenz, supervising attorney at Brooklyn Defender Services for the New York Immigrant Family Unity Project, which represents immigrants in detention.
Saenz said her attorneys have been trying to release clients they believe should qualify since January 20th, but they have gotten nowhere. They tried again on Monday, when the change was due to take effect. She said ICE didn’t appear to have gotten the memo.
“They are acting like we are asking for release due to COVID-related medical risks, which is a different kind of relief request. And that is not what we're asking for.”
Still, she said she’s hopeful things will change this week as guidance gets into the hands of ICE enforcement officers; and immigration lawyers throughout the region are planning to seek relief for detained clients.
“The government and the Biden administration has set up specific priorities for the people in which that discretion should be exercised favorably,” said Mauricio Noroña, a teaching fellow at Cardozo Law School's Immigration Justice Clinic. “We're just asking them to make a discretionary decision that they're legally entitled to do.”
On Monday, the Cardozo law clinic filed a request to release a 23-year-old client who’s been in detention for three and a half years.
Daniel, whose full name is being withheld because he’s afraid of being returned to his native country, fled gang violence in El Salvador in 2013 when he was 15. He joined his mother in Brentwood, Long Island. He was approved for Special Immigrant Juvenile status, because he’d been abandoned by a parent in El Salvador, and expected to receive a green card.
But Noroña said ICE detained him in 2017 for allegedly being a gang member, a claim that was never proven. He had no criminal record, though he’d been arrested for driving without a license and disorderly conduct. He’s been fighting his removal in immigration court ever since and federal court has blocked him from being removed in the meantime.
The law school clinic requested that ICE release Daniel, stating, “he has a clear path to lawful status and because he is neither a danger to the community nor a flight risk.” The request also says his prolonged detention and prosecution for removal “constitute poor uses of the department’s limited resources” that are not in keeping with the Biden administration’s new priorities.
Speaking in Spanish from ICE’s Pine Prairie facility in Louisiana, where he was moved last fall following stints in different detention centers in New Jersey, Daniel said, “I’ve lost three years of my life. That’s enough.”
He said he’s currently quarantined in a room with other detainees to avoid catching COVID-19, and he misses his mother and daughter on Long Island; his girl is turning five this month. He talks to his mother daily.
“She tells me that now there’s a new president and that he’s done a lot of new laws and that he’s on our side, and so maybe I’ll be able to get out," Daniel said.
Noroña and the others working on Daniel’s case believe their request to release him should be honored right away, now that the Biden administration has new priorities for enforcement and removal.
“If ICE officials are going to comply with this memo, it means that Daniel could be home with his family tomorrow,” said Aaron Friedman, a Carodozo law school intern on the case.
New York Congressman Jerry Nadler, who chairs the judiciary committee, sent a letter on Monday with California Congresswoman Zoe Lofgren, of the subcommittee on immigration and citizenship, asking ICE to comply with Biden’s executive order. They referred to the planned deportations of African immigrants from an ICE facility in Louisiana and cited the new enforcement priorities.
Immigration attorneys said the Texas court case, blocking Biden’s moratorium on removals, should not apply to those who aren’t a high priority because ICE can still use its discretion in individual cases.
Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.
