100 Day Pause on Removals
On January 20, 2021 the Department of Homeland Security (DHS) issued a MEMORANDUM directing U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS) to conduct a review of policies and practices concerning immigration enforcement.
The Department-wide guidance includes a 100-day pause on certain removals while DHS conducts a Department-wide review of policies and practices concerning immigration enforcement. The review requires that each component of DHS develop recommendations to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement
The specifically directs an immediate pause on removals of any noncitizen with a final order of removal (except as noted below) for 100 days to go into effect as soon as practical and no later than January 22, 2021. The pause on removals applies to any noncitizen present in the United States when this directive takes effect with a final order of removal except one who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver. “Noncitizen” as used in this memorandum does not include noncitizen nationals of the United States.
and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.
The memorandum instructs Department components to surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.
In the interim and pending completion of that review, the Department’s priorities shall be:
1. National security. 2. Border security. 3. Public safety.
Multiple memoranda issued by the Trump administration are rescinded and superseded by the January 20th 2021 Biden Administration MEMORANDUM.
The Department-wide guidance includes a 100-day pause on certain removals while DHS conducts a Department-wide review of policies and practices concerning immigration enforcement. The review requires that each component of DHS develop recommendations to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement
The specifically directs an immediate pause on removals of any noncitizen with a final order of removal (except as noted below) for 100 days to go into effect as soon as practical and no later than January 22, 2021. The pause on removals applies to any noncitizen present in the United States when this directive takes effect with a final order of removal except one who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver. “Noncitizen” as used in this memorandum does not include noncitizen nationals of the United States.
and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.
The memorandum instructs Department components to surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.
In the interim and pending completion of that review, the Department’s priorities shall be:
1. National security. 2. Border security. 3. Public safety.
Multiple memoranda issued by the Trump administration are rescinded and superseded by the January 20th 2021 Biden Administration MEMORANDUM.
DACA Executive Order – January 20, 2021
This past Wednesday President Biden issued a battery of executive orders addressing several immigration issues.
One executive order specifically mentioned the Deferred Action for Childhood Arrivals (DACA) program. President Biden mandated in that executive order that DACA must be “preserved and fortified”.
What does that mean?
At the very least the DACA program will continue in the original format as instituted in 2012. However, the executive order indicates that DACA has to be “fortified”. That may mean that the qualifying requirements may be altered and changed to allow another group of applicants to be eligible depending on the date of entry and date of physical presence in the U.S. Another change may be made to the requirements for an advance parole document.
We will need to wait for DHS to react in the next few months.
One executive order specifically mentioned the Deferred Action for Childhood Arrivals (DACA) program. President Biden mandated in that executive order that DACA must be “preserved and fortified”.
What does that mean?
At the very least the DACA program will continue in the original format as instituted in 2012. However, the executive order indicates that DACA has to be “fortified”. That may mean that the qualifying requirements may be altered and changed to allow another group of applicants to be eligible depending on the date of entry and date of physical presence in the U.S. Another change may be made to the requirements for an advance parole document.
We will need to wait for DHS to react in the next few months.
Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts
On January 20, 2017 when President Donald Trump assumed office, a total of 542,411 deportation cases were pending before the Immigration Courts throughout the U.S. Four years later at the start of 2021, the Biden administration will inherit a massive load of 1,290,766 cases—nearly two and a half times the level when Trump assumed office. Another 300,000+ cases have not been placed on the active docket and are waiting in the wings because former President Trump’s policy changes decided that this other batch of cases aren’t finally resolved.
During the four years since Trump assumed the presidency, the massive log jam of court cases can be attributed in part to the many policy changes that changed court operations and slowed case processing. However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security. These factors accelerated the rate of growth in the case backlog through out Trump’s term in office.
The Biden administration will need more than four years to even make a small dent in the pile-up of cases awaiting resolution. Even if the Biden Administration halted immigration enforcement entirely, this gigantic pile-up of cases will be a seemingly intractable problem. This is former President Trump’s departing legacy.
During the four years since Trump assumed the presidency, the massive log jam of court cases can be attributed in part to the many policy changes that changed court operations and slowed case processing. However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security. These factors accelerated the rate of growth in the case backlog through out Trump’s term in office.
The Biden administration will need more than four years to even make a small dent in the pile-up of cases awaiting resolution. Even if the Biden Administration halted immigration enforcement entirely, this gigantic pile-up of cases will be a seemingly intractable problem. This is former President Trump’s departing legacy.
Trump Grants Deferred Enforced Departure for Certain Venezuelans
On January 19, 2021, the last full day of the Trump administration, Trump issued an executive order to defer for 18 months the removal of any national of Venezuela, or alien without nationality who last habitually resided in Venezuela, who is present in the United States as of January 20, 2021. Employment authorization will also be issued to those who are eligible.
The executive order also outlined eight (8) groups of individuals who are not eligible.
DHS will now be charged with establishing a process to register and determine eligibility for the DED
The executive order also outlined eight (8) groups of individuals who are not eligible.
DHS will now be charged with establishing a process to register and determine eligibility for the DED
USCIS To Suspend In-person Services For Jan. 19 & 20
U.S. Citizenship and Immigration Services announced on January 15, 2020 it will temporarily suspend in-person services at all field offices, asylum offices and application support centers on Jan. 19 and 20 to ensure the safety of our employees and individuals with appointments.
USCIS will reschedule individuals who had appointments on Jan. 19 and 20 and send them notices with their new appointment dates.
USCIS Replaces Sticker That Extends Validity of Permanent Resident Cards
USCIS will no longer issue stickers to extend the validity of a Form I-551, Permanent Resident Card (PRC), or Green Card.
USCIS will instead issue a revised Form I-797, Notice of Action, receipt notice of Form I-90, Application to Replace Permanent Resident Card.
The revised notice will extend the validity of a PRC for 12 months from the “Card Expires” date on the front of the PRC.
Employees may present their expired PRC together with this notice as an acceptable List A document that establishes identity and employment authorization for Form I-9 purposes.
Employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9.