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A Judge Blocked Biden’s Big Pause On Deportations, But ICE Says It Will Continue To Focus Only On Certain Immigrants

Despite the legal setback, ICE officers were told to remain focused on immigrants who pose national security or other public safety threats, along with people who arrived in the US after Nov. 1.

Posted on February 25, 2021, at 7:34 p.m. ET

Matt York / AP

Undocumented immigrants from El Salvador are searched before boarding an aircraft in Arizona for a repatriation flight back to their home country.

Immigration and Customs Enforcement employees were told Thursday that despite a federal judge blocking President Joe Biden's pause on deportations, they should still focus on removing people that fit the new administration’s priorities, such as those deemed public safety threats, according to an email obtained by BuzzFeed News.

Federal Judge Drew Tipton on Tuesday indefinitely blocked the Biden administration from continuing with a 100-day moratorium on most deportations. Tipton, a Trump appointee, said the memo violated administrative law and that the state of Texas, which had filed a lawsuit challenging the White House, adequately showed it would face harm from higher numbers of detainees and public education costs.

The court order was a blow to Biden’s goal of pausing deportations while reviewing Department of Homeland Security policies and potential reforms. However, in issuing his order, Tipton did not require DHS to deport certain individuals or roll back a change in priorities for whom to arrest and detain.

Biden’s moratorium applied to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the country.

Matthew Allen, the acting deputy director of ICE, wrote to employees that even though the court order blocked Biden’s moratorium, it does not prevent them from making case-by-case deportation decisions, like granting a stay for those facing removal from the country.

ICE employees were told to not consider the blocked moratorium in determining whether to deport someone, but they should continue to follow earlier guidance on the “prioritization of removal resources.”

In January, a DHS memo told employees to focus their efforts on immigrants who pose national security or other public safety threats, along with people who arrived in the US after Nov. 1. In February, ICE also directed officers to focus its enforcement resources on basically the same pool of people.

A Department of Homeland Security official told reporters at the time that the interim guidelines, which are expected to be followed by another directive in May, will help the agency “better perform” its mission.

The email sent Thursday comes amid the Biden administration’s attempts to reform the much-maligned agency and the work it carries out across the country. Former president Donald Trump’s directive in 2017 made nearly every undocumented immigrant a priority for arrest, leading to a higher proportion of those without criminal convictions being picked up.

Some immigrant advocates and experts have pushed the Biden administration to reel back deportations, regardless of the order.

“The Biden administration should seek a stay of this order, which contradicts the broad power to make enforcement decisions that the federal government generally holds,” Jaclyn Kelley-Widmer, a professor at Cornell University’s Immigration Law and Advocacy Clinic, said in a statement. “Further, even though this order prohibited a complete stop to deportations, the Biden administration can and should be more careful with deportations it does conduct.”

For his part, Tipton questioned in his order why the moratorium was even necessary.

“Why does DHS need a 100-day pause on removals to ‘fairly and efficiently’ process immigration and asylum applications at the southwest border? Why is pausing removals essential to redirecting immigration resources? And equally crucial, why and how does the pause connect to the new Executive’s need to reset priorities?” he wrote.

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.