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ICE Is Adding A New Appeals Process For Immigrants Who've Been Detained

The move comes just weeks after ICE instructed officers to target immigrants who pose public safety threats or recently crossed the border.

Last updated on March 5, 2021, at 6:41 p.m. ET

Posted on March 5, 2021, at 3:38 p.m. ET

Mark Avery / Associated Press

Immigration and Customs Enforcement officials have created a new appeals process that will allow immigrants and their advocates to challenge arrests, detentions, and deportations as the Biden administration continues to focus enforcement actions on certain populations, officials said Friday.

The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.

It comes just weeks after ICE instructed officers to target alleged threats to national security and public safety, along with those who recently crossed the border, a shift from the Trump administration which made nearly every undocumented immigrant a priority.

Immigrants and advocates have already been able to challenge arrests, continued detention, or imminent deportation at a local level, overseen by a regional official; the new process allows for a separate challenge through the ICE Case Review Process if the local official denies the request. The reviewers will look through to see if the arrest meets the Biden administration’s guidelines or whether new circumstances in the case deserve a different decision, like a release from custody, a canceled notice to appear in immigration court, or a pause on a deportation.

Those who are in detention or facing imminent deportation will have priority.

“This reinforces how seriously the administration is taking their policy decisions and implementation thereof. They are really trying to change things significantly from the last administration,” said John Amaya, a former ICE official under the Obama administration, who added that the message to the public is “if you believe we are being inconsistent operationally, let us know.”

The review process, he said, will put the onus on ICE leaders across the country to make sure their officers are up to speed on the new policies.

“It is going to keep people on their toes and keep them busy,” he said.

The Biden administration had previously attempted a 100-day deportation moratorium, but that plan was blocked by a federal judge in Texas. The judge’s order, however, did not stop the White House from moving forward with changing ICE’s enforcement priorities, which will likely lead to a cut in the average number of arrests officers make.

“This demonstrates that we as an agency will be as consistent as possible and comply with the interim guidance as we await new guidance through [executive orders] and policies,” said an ICE official who spoke on the condition of anonymity. “This is an extra layer to just make sure we are transparent ... and are delivering what the secretary is looking for.”

The guidelines lay out how those who pose a public safety threat, were convicted of an aggravated felony, or “engaged in certain activity as part of a criminal gang or transnational criminal organization” will be enforcement targets.

Greg Chen, governmental relations director at the American Immigration Lawyers Association, said there has also been an informal process for attorneys or lawmakers who understand whom to go to at the Department of Homeland Security for additional help or review of a case.

“The fact that they are formalizing it adds a level of transparency to enable people who don’t understand the operations of DHS to understand that they can seek review at a higher level,” he said. “It’s that kind of transparency that will help people who are unrepresented or do not have extensive contacts within the agency.

"Unfortunately, this process will likely remain inaccessible for unrepresented people in immigration detention, which makes it all the more urgent for ICE to review detained cases to make sure no one is unnecessarily deprived of their liberty."

The process is expected to remain in effect for at least until an additional set of guidelines is released for ICE officers, which is planned to come out at the beginning of May.

ICE officers already need preapproval from their local superiors in deciding whether to arrest or deport people who are not a priority and will be required to justify the action through a written request.

The memo also blocks officers from making so-called collateral arrests if the person is not a priority listed by the administration. The only time officers can avoid this requirement is when there is a threat to life or substantial threat to property.

The review represents a marked shift from agency operations during the Trump administration, when ICE prosecutors were restricted from granting reprieves for certain immigrants facing deportation and had to review and potentially reopen previously closed cases, which was first revealed by BuzzFeed News through Freedom of Information Act requests.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.