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Lack of immigration guidance set to ripple through enforcement

Courts have halted Biden administration nationwide policy for ICE agents at least through the end of the year

A truck displaying messages expressing concern over deportations of Black immigrants rolls past the office of U.S. Immigration and Customs Enforcement in Washington in 2021.
A truck displaying messages expressing concern over deportations of Black immigrants rolls past the office of U.S. Immigration and Customs Enforcement in Washington in 2021. (Jemal Countess/Getty Images for UndocuBlack Network)

California-based immigration lawyer Nanya Thompson believes her client’s case is the type immigration agents would have left alone, if not for recent court rulings that halted Biden administration efforts to prioritize enforcement.

The undocumented immigrant from Mexico had been living in the U.S. for nearly three decades. His wife is an American citizen, and he has a pending request for a green card. They have kids, and he lives near his elderly parents. He wears an ankle monitor from U.S. Immigration and Customs Enforcement.

So they were suspicious when ICE agents suddenly called him to their office in July to check his monitor, and those fears were quickly realized. He was deported that day, forcing him to now spend several years outside the country and away from his family during the green card process.

Thompson’s client is likely one of an unknown number of immigrants whose lives have been or could be upended by the blocking of the Biden administration’s enforcement guidance, which instructed ICE agents to focus on cases involving immigrants who pose a threat to public safety or national security.

Two Republican-led states challenged the guidance and won in federal courts, and the Supreme Court last month denied the Biden administration’s request to implement the policy as the case continues. That won’t change for months, at least until the justices decide the issue, likely in the first half of 2023.

Former Homeland Security officials warn that the lack of nationwide immigration guidance could now force some inconsistent decision-making across the country and threaten agency operations long-term.

“This is obviously an incredibly problematic decision for ICE, and really for the country,” said John Sandweg, an ICE director during the Obama administration.

The lack of clear guidance from the top could make it harder to hold agents accountable for the quick decisions they make in the field on who to detain and deport, undermine a culture that has long focused first on public safety and potentially make enforcement of national immigration laws unequal and depend on where the migrant happens to live, those former officials say.

That could mean potentially devastating results for undocumented immigrants who’ve spent years in the U.S. with no criminal record or only minor criminal convictions.

Thompson questioned what case would merit discretion if not her client’s. “The [ICE] office still has the authority to exercise their discretion. They’ve exercised their discretion in the past,” Thompson said. “It just leaves me to wonder, in what case would they exercise discretion?”

More ‘collateral’ arrests

The Department of Homeland Security said following the high court ruling that ICE agents “will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.”

But former officials say the absence of guidance could cause confusion and frustration for agents tasked with making snap judgments in the field.

“I think the real issue is the ongoing frustration for leadership and the people on the ground,” said John Amaya, who served as ICE’s deputy chief of staff during the Obama administration. “They’re being told one thing on Monday; they’re being told a different thing on Friday.”

It also removes a layer of accountability over agents’ actions, said Theresa Cardinal Brown, who served in the DHS’ policy office during the George W. Bush administration.

“If you don’t know from one day to the next what the rules are, it’s really hard to operate,” Brown said.

Though enforcement data reflecting the court rulings is not yet available, in the short term, the agency could see an increase in so-called “collateral” arrests, or instances in which an agent encounters other immigrants as part of an unrelated operation and decides to arrest them.

“Individuals could feel emboldened to make an on-the-spot decision if they are making a public safety arrest, and then they encounter others,” said Julie Myers Wood, who led ICE during the George W. Bush administration.

Carlos Guevara, who served as counselor for the DHS’ office of the secretary during the Obama administration, said he would be watching for “potential inconsistent outcomes depending on jurisdictions.”

“There are many law enforcement officers that do great, important things for the country,” said Guevara, now immigration policy director at UnidosUS. “But there are also some that benefit from having operational guidance and direction coming down, giving them some parameters of how to operate.”

Limited resources

Most former officials said not to expect an immediate sea change at the agency, which they stressed has always had to use prosecutorial discretion when working within its limited resources. ICE still has to work within the confines of the directives and funding provided by Congress, which gave the agency $4.18 billion for its enforcement and removals unit in fiscal 2022.

“Will there be, as a result of this decision, maybe a couple of individuals in the agency who are trying to make a political point?” Sandweg said. “Sure, there might be a handful of those cases. But the bottom line is that the resource constraints that ICE talks about are real.”

Myers Wood, who led the agency more than a decade ago, added that ICE has consistently prioritized people who recently crossed the border and immigrants with serious criminal convictions.

“Now, what is a recent border crosser may differ in various administrations. What is a serious crime may differ in different administrations. But generally, that is the focus that you see in most administrations,” Myers Wood said.

But if the Supreme Court ultimately rules against the administration, the long-term repercussions could be more significant, Sandweg said.

“In the long term, it could absolutely erode this ‘public safety first’ culture, and it could diminish the importance of ICE as an agency and, frankly, the role of ICE agents,” he said. “It could create chaos.”

Immigration courts

The absence of guidance could also bleed into immigration court procedures for immigrants already facing deportation.

Prosecutorial discretion in immigration court could include anything from dismissing or temporarily pausing an individual’s removal proceedings while an immigrant pursues other relief to agreeing not to contest certain facts in a case, such as how long an undocumented person has been in the country.

Following the high court’s decision, ICE announced on July 26 that related prosecutorial discretion guidance issued to its Office of the Principal Legal Advisor, whose attorneys represent the government in deportation cases, had also been rescinded.

OPLA attorneys may still “exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases,” the agency said.

Jennifer Ibañez Whitlock, policy counsel for the American Immigration Lawyers Association, said she has heard reports from immigration lawyers that local OPLA offices are still entertaining requests for prosecutorial discretion. But Whitlock, who serves on an association committee that liaisons with ICE, said she has also heard more “troubling reports” from AILA members of prosecutorial discretion requests being denied.

These “case-by-case” reviews of prosecutorial discretion requests may take more time for the agency to process and create more uncertainty for immigrants — especially those appearing without lawyers — about whether they would qualify for that relief, Whitlock said.

If OPLA attorneys close fewer deportation cases, it could also grow an already lengthy immigration court backlog, which currently stands at more than 1.8 million cases.

Whitlock compared the immigration court docket to an “I Love Lucy” scene in which the titular character struggles to frantically package increasing amounts of chocolate coming down a conveyor belt.

The administration’s guidance “had the effect of saying, look, we’re going to ease the firehose that’s coming at you,” she said. “Without that now, it just feels like it’s that conveyor belt again where the emphasis is on prosecuting everything.”

Court back-and-forth

The court ruling is the latest instance of whiplash from litigation challenging the Biden administration’s immigration policies.

The administration has seen similar court rulings over its efforts to rescind the Trump-era “Remain in Mexico” program and the pandemic-related border expulsion policy, known as the Title 42 directive.

This creates an environment of uncertainty for agency leaders, who must now prepare for legal challenges to any policy change or directive, Brown said.

“From an operational perspective, not being able to issue even guidance to your own people … it’s very problematic for the leadership of any organization,” Brown said. “You’re constantly second-guessing yourself.”

Several former officials attributed the frequent litigation to a shifting political landscape that has seen increased suits from states against national immigration policies.

The uncertainty is aggravated by the absence of a Senate-confirmed leader since the Obama administration, which Amaya warned could further undermine morale.

“The rank and file, they need to know that someone’s going to bat for them,” Amaya said.

But Myers Wood said such back-and-forth has become “status quo” for many agents who have worked through multiple political administrations.

“They are constantly barraged with different litigation, different pressure from Congress,” she said. “They are used to living with uncertainty and simply operating under the current law that exists.”

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