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ICE unveils new rules to curtail some arrests, prioritize deportations of certain groups

The Biden administration issued new guidance Thursday instructing deportation agents to focus on apprehending recent border-crossers and immigrants determined to threaten national security and public safety, requiring them to seek supervisory approval for other arrests.

The memo outlining these enforcement priorities marks a significant shift from the deportation and arrest policies of the Trump administration, which rescinded Obama-era limits placed on Immigration and Customs Enforcement (ICE) operations and rendered most undocumented immigrants vulnerable to being apprehended.

"The purpose of the guidance is to empower ICE to allocate its resources in a way that best addresses the most pressing national security, border security and public safety threats. And in so doing, it should better enable ICE to perform its mission," one DHS official said on a call with reporters Thursday.

The guidance signed by Acting ICE Director Tae Johnson defines national security risks as immigrants who engaged or are determined to be suspected of engaging in terrorism or spying. Officers can also arrest someone when it is deemed necessary to safeguard U.S. national security.

All migrants who cross or attempt to cross U.S. borders without legal permission on or after November 1, 2020, will be prioritized for deportation under the border security category. The Biden administration has so far retained a Trump-era public health authority to expel most recent border-crossers, including asylum-seekers. 

The last prioritization group would include non-citizens found to pose a public safety risk and who were convicted of crimes deemed to be "aggravated felonies" under U.S. immigration law. Immigrants convicted of crimes linked to participation in a criminal street gang would also be included in this category.

Thursday's memo said ICE agents should consider the seriousness of crimes and when they were committed to determine whether an immigrant poses a public safety risk. They should also take into account "mitigating factors" like personal circumstances, health issues, ties to U.S. communities, evidence of rehabilitation and whether the individual qualifies for any immigration relief. 

The memo also instructs agents to exercise "particular attention" for cases that involve elderly immigrants, as well as those with serious medical conditions.  

While the guidelines do not shield any undocumented immigrant from being arrested, ICE officers will need to receive preapproval from their local field office directors before arresting someone outside of these enforcement parameters.  

The memo also requires officers to send weekly reports on arrests to the ICE director and the DHS secretary. A DHS official said this mandate is designed to ensure "accountability," and establish an "ongoing dialogue" between agents and leadership about the new rules.

Asked by CBS News if the guidance will curb ICE arrests in U.S. communities, a DHS official said it would not reduce operations targeting individuals who fall within the three priority groups.  

"I think it will not reduce the arrests and other enforcement actions taken in those cases that the public cares about. So when it comes to cases that implicate national security, border security and public safety, we would not expect a reduction," the official added. "It's just a question to us of reallocating resources to the cases that really truly matter."

Last spring, ICE scaled back so-called at-large arrests because of the coronavirus pandemic. Thursday's memo requires officials to provide local law enforcement prior notice before conducting arrest operations in their communities. 

The DHS official also confirmed that the memo should affect decisions about detention, saying officers will need to determine whether detainees who don't fall within the new enforcement priorities should be released.

"It is possible that there would be different recommendations about detention as a result of this guidance," the official added.

As of late January, ICE was holding 14,000 immigrants in detention facilities across the country, according to agency data.

The rules announced Thursday will stay in place until they are superseded by a department-wide guidance expected to be issued by DHS secretary Alejandro Mayorkas.

On his first day in office, President Biden scrapped a directive issued by former President Donald Trump that said no categories of undocumented immigrants would be exempt from immigration arrests. 

Then-Acting DHS Secretary David Pekoske also signed an Inauguration Day memo authorizing an 100-day pause on most deportations from the interior of the country, as well as interim arrest priorities similar to the ones announced on Thursday.

The deportation moratorium is currently not in effect due to court orders from a federal judge overseeing a lawsuit filed by Texas, which sued the Biden administration over the policy.

Nicole Sganga contributed reporting.

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