Week 25: Special edition — COVID-19 brings ICE’s discretionary powers to the forefront

Immigration news, in context.

This is the twenty-fifth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

Recently, we rolled out a way for you to support the work we do every week to untangle these complex concepts. If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

  • In The Big Picture, we explain ICE’s discretion when it comes to arresting and detaining immigrants, and how it relates to current calls to release migrants from ICE custody because of coronavirus.

  • In Under the Radar, we discuss a new Customs and Border Protection memo asking for the Department of Defense to send troops to the border.

  • In Next Destination, we discuss whether immigration courts will stay open despite judges, ICE attorneys, and immigrant advocates’ request that all hearings be postponed due to the pandemic.

The Big Picture

What’s happening?

Immigrant advocates are urging ICE to slow down arrests and release immigrants from detention as a precautionary measure due to the coronavirus. So far, ICE has largely resisted doing so. This week, we explain the agency’s broad discretion when it comes to arrests and detention, and how it can be applied to the current situation.

Immigration arrests

Last Wednesday, ICE put out a statement claiming that, in response to the novel coronavirus pandemic, the agency would temporarily “focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, [Enforcement Removal Operations, the part of ICE that handles immigration arrests and deportations] will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.”

The language seemed to insinuate a return to the prioritization scheme put in place by former President Barack Obama during roughly the last two years of his presidency, starting with a memo by then-Homeland Security Secretary Jeh Johnson in November 2014. It set recent immigration violators and those convicted of certain crimes as priorities for arrest and removal, and instructed field agents to mostly leave everyone else alone unless it served “an important federal interest.” On just his fifth day in office, President Donald Trump issued an executive order that abolished these categories and instructed his enforcement machinery to target all immigration violators.

It’s not clear that the ICE’s new stance has actually changed much. As of Saturday, three days after the statement went out, ICE had more people in detention than it did on the previous Saturday (though any shift in enforcement could take more than a few days to manifest). Politico reported on Thursday that Acting ICE Director Matthew Albence had made the prioritization decision unilaterally, and some senior officials in Homeland Security and the White House were not happy. 

On Thursday morning, Acting Deputy Homeland Security Secretary Ken Cuccinelli (an immigration hardliner and avid Twitter user) tweeted a “clarification” thread on ICE’s stance, seeming to contradict the statement by claiming that the prioritization “does not mean that no other removable aliens will in fact be removed, but during the current public health situation, removals will be done in such a way as to minimize the exposure of our agents and of the removable aliens we are encountering.”

On Friday, ICE requisitioned 45,000 N95-type medical masks to go to its ERO field offices, presumably for use in detention operations around the country, further casting doubt on its commitment to pull back on arrests as the crisis continues.

Whether or not the agency has really shifted its operational stance in response to the pandemic, many were reminded of the fact that it absolutely can, at any time.

An important facet of federal immigration enforcement is the prevalence of discretion in performing it. The U.S. Code carefully lays out a complicated scheme that permits some people to enter and reside in the U.S. lawfully and while others cannot. However, unless the government is mandated by law to take an immigration violator into custody (and we’ll get to mandatory detention in the next section), the executive has the power to emphasize and de-emphasize certain groups of people for targeting and arrest, exempt certain groups from enforcement, and even mostly suspend enforcement.

People can be deemed inadmissible and deportable under 8 U.S.C. §§ 1182 and 1227, respectively, and federal immigration authorities are conferred the power to arrest those in violation of these laws by 8 U.S.C. § 1357. That said, such enforcement is not necessarily obligatory for most violators, and officials from the president down to line personnel have exercised discretion in some form for as long as there have been immigration laws.

As former Supreme Court Justice Anthony Kennedy put it in the 2012 majority opinion in the case of Arizona v. United States, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”

This discretion is what allows, for example, the Deferred Action for Childhood Arrivals (DACA) program to exist. The people protected by DACA haven’t been granted a new immigration status, and remain just as removable as they were prior to it, but are protected from arrest and removal by executive decision-making. It’s why some removable people are permitted to attend periodic ICE check-ins instead of being subject to arrest, and why they can ultimately be arrested at any of these check-ins with no forewarning.

There is already precedent for suspending immigration enforcement during periods of public emergency. ICE and CBP have largely ceased such operations during hurricanes, for example. In doing so, the agencies have said they are prioritizing “the preservation of life and safety.” It’s clear that, during this massive public health crisis, a fear of seeking medical attention or reporting symptoms can have detrimental effects on life and safety.

However, the reaction to Albence’s statement and the administration’s general posture towards immigration (especially during an election year) make a full moratorium on enforcement operations very unlikely.

Detention

On Tuesday, a 31-year-old Mexican man at the Bergen County Jail in New Jersey tested positive for coronavirus. The facility, a county jail operated by the local sheriff’s office that holds people on criminal charges awaiting trials alongside immigrant detainees, was placed under a “lockdown protocol,” BuzzFeed News reports. By Thursday, a second man in ICE custody, a 52-year-old Guatemalan man in Newark’s Essex County Jail, had tested positive for the virus

That same day, after the news of the first broke, a federal judge in the Southern District of New York ordered ICE to release 10 people in its custody in New Jersey, all of whom have underlying medical conditions that make them susceptible to being infected with COVID-19. She also prohibited the agency from arresting the men again while their deportation hearings continue. ICE had reportedly released a handful of immigrants in New Jersey due to the virus as well.

For activists who have been calling for the release of medically vulnerable immigrants in ICE custody, the judge’s decision is both a victory and a small step in the right direction. It also reveals how reluctant federal immigration officials have been to use their discretion to release immigrants in ICE custody, even as calls for them to do so grow louder.

ICE could release most of the people it detains without a judge’s order. Unlike people in criminal detention, the immigrants held in ICE facilities are civil detainees. Under the law, some immigrants are subject to mandatory detention — but only those with certain criminal charges, detailed in 8 U.S.C.§  1226.

When an immigrant is issued a Notice to Appear in immigration court, the first step in deportation proceedings often issued as part of an immigration arrest, the document should say whether the person is being apprehended on grounds of “inadmissibility” or “deportability." Inadmissibility means the person was never given permission to enter the U.S. in the first place, or, in some cases, that they lawfully re-entered the country after committing certain crimes that made them inadmissible. Deportability means a non-citizen was lawfully admitted into the country — either with a non-immigrant visa or an immigrant visa [or visa waiver]— but has jeopardized their status in the U.S. in some way.

The law says that any immigrant who is inadmissible or deportable under certain sections of §§  1182  and 1227 is subject to mandatory detention. Section 1182 states that inadmissible immigrants are subject to mandatory detention if they commit certain offenses, including:

  • Conviction/sufficient admission of a crime involving moral turpitude

  • Any controlled substance offense conviction or violation of a law relating to a controlled substance

  • 2+ criminal offenses with aggregate sentences of more than 5 years

  • Drug trafficking

  • Human trafficking

  • Money laundering

  • Prostitution

  • Terrorism

They don’t have to have been convicted of that crime, and the government has a lot of latitude when it comes to determining whether someone committed an act of terrorism or drug trafficking in particular. There’s also the issue of “crimes of moral turpitude,” which isn’t defined anywhere in the law — even the Board of Immigration Appeals has referred to it as a “nebulous concept.” Generally speaking, though, moral turpitude offenses include murder, rape, kidnapping, robbery, attempted assault, and fraud, among others.

Deportable immigrants are similarly subject to mandatory detention if they commit offenses including:

  • Crimes of moral turpitude

  • Crimes for which a sentence longer than 1 year may be imposed

  • Aggravated felonies

  • Controlled substances crimes

  • Certain gun crimes

  • And miscellaneous crimes involving espionage and sabotage

“Aggravated felony” is another strange term, since crimes considered such aren’t always “felonies” to begin with. Congress has expanded the definition of aggravated felony since introducing the term in 1988, and offenses include things as serious as rape and murder to lesser offenses such as theft or filing a false tax return.

Despite characterizations of immigrants in ICE custody as “criminal aliens,” many crimes that can trigger deportation proceedings are relatively minor. In New York City, immigrants who are arrested for jumping a subway turnstile — considered “theft of services” — are considered to have committed a removable offense, for example.

All of this is to say that the majority of people currently being held by ICE aren’t subject to mandatory detention. There were 38,058 people in ICE custody as of March 21, according to data released by the agency. Of those, 12,491, or just under one-third, have committed some kind of criminal offense. Not all those offenses are grounds for mandatory detention. Almost half of the people currently detained by ICE were referred there by Customs and Border Protection, meaning many are likely asylum seekers who presented at the border. 

Immigrants’ attorneys are filing bond and parole requests in the hopes of getting their clients released from detention as quickly as possible. Getting immigrants out of ICE custody was an uphill battle even before the pandemic. The ICE field offices in San Antonio, Texas and New Orleans, Louisiana have been issuing blanket parole denials to asylum seekers under their jurisdiction — even though a federal judge ordered the New Orleans field office to stop doing so last September. In New York, a lawsuit filed by the New York Civil Liberties Union and Bronx Defenders claims that the “risk assessment” algorithm ICE uses to determine whether immigrants are eligible for bond is also leading to blanket denials.

There are a few legal and logistical differences between bond and parole. Under 8 CFR §1003.19, immigrants arrested in the interior of the country are eligible for bond if ICE determines they aren’t a flight risk or a threat to public safety. “Arriving aliens,” i.e., those who present at the border or at another port of entry, are not eligible for bond but may be paroled out of custody. ICE also determines parole requests. A 2009 Department of Homeland Security parole directive says that asylum seekers who have established a credible fear of persecution in their home country and are deemed to not be a flight risk or danger to the community should be granted parole in the “public interest.”

Despite these stipulations and the additional urgency posed by the coronavirus, immigration attorneys have had trouble getting clients released from detention through either bond or parole. Some attorneys have been filing habeas petitions in federal court, alleging that individual clients are in imminent danger, and some organizations have sued ICE, demanding the agency release groups of vulnerable immigrants immediately.

It’s important to note that being released from ICE detention doesn’t mean an immigrant is no longer in deportation proceedings. It just means that rather than wait for their case to play out from a detention center, they can do so from home. It also means that their case shifts from the detained docket to the non-detained docket — which has other implications during the pandemic, since the Executive Office for Immigration Review, the Department of Justice agency that oversees immigration courts, has postponed all non-detained hearings but hasn’t done so for detained hearings.

Under the Radar

CBP wants to deploy the military to the border because of coronavirus

An internal Department of Homeland Security memo obtained by The Nation reveals that Customs and Border Protection has asked the government to deploy more than 1,500 Department of Defense personnel to man both the U.S.’s northern and southern borders. CBP has asked for 1,000 military personnel to be sent to the Canadian border and 540 to the southern border, saying they’re needed to “increase CBP’s capacity to protect public health and prevent the spread of COVID-19.”

The memo suggests that immigrants who cross between ports of entry are vectors for COVID-19 and other infectious diseases, even though the United States currently has confirmed coronavirus cases than Mexico and Canada combined. (There are 475 confirmed cases in Mexico, according to the Guardian, and 4,043 in Canada, according to the country’s health department. The U.S. has more than 81,000 confirmed cases.)

Nevertheless, the Trump administration has used the pandemic as an excuse to further militarize the border, and the president has described the coronavirus as a “Chinese” virus brought to the United States by foreigners. The CBP memo obtained by The Nation makes similar inferences, though not quite with the same language. “Any unknown or unresolved illegal entries into the United States in between Ports of Entry (POE), have the potential to spread infectious disease,” it states.

Next Destination

What’s going on with the immigration courts?

As we mentioned above, the Executive Office for Immigration Review has put all hearings for non-detained immigrants on hold. Hearings for immigrants in detention are still on — to a degree. Over the past week, EOIR has taken to Twitter to announce individual court closures and reopenings, usually after 5 p.m. EST. For example, on March 24, the agency tweeted that certain immigration courts in Atlanta, Houston, Los Angeles, Memphis, New York City, and Sacramento would be open for business “for the limited purpose of accepting filings.” The next day, EOIR announced that courts in Aurora, Colorado; Baltimore, Maryland; and LaSalle, Louisiana would be closed on the 26th “as a precautionary measure,” while the courts in Newark and Seattle — two cities that have been particularly affected by the virus, both inside and outside the immigration system — would reopen.

Meanwhile, an unprecedented coalition of immigration judges, ICE attorneys, and immigrant defense attorneys have banded together to urge EOIR to postpone all hearings — both detained and non-detained — indefinitely. “Failing to close all of the nation’s Immigration Courts, both non-detained and detained settings, now will exacerbate a once-in-a-century public health crisis and lead to a greater loss of life,” Judge Ashley Tabaddor, the president of the National Association of Immigration Judges, said in a statement. “We cannot afford to wait another week.” 

Despite this effort, it’s likely the court chaos will continue for now.