The Department of Homeland Security (DHS) issued a memo Feb. 18 with “temporary guidelines for…enforcement and removal operations” by Immigration & Customs Enforcement (ICE), giving ICE agents discretion on enforcement actions and essentially overturning the “100-day pause on certain removals” instated by President Biden’s executive order of Jan. 20, his first day on office. Naureen Shah, senior policy counsel for the American Civil Liberties Union (ACLU), responded to the move in a statement: “The memo is a disappointing step backward from the Biden administration’s earlier commitments to fully break from the harmful deportation policies of both the Trump and Obama presidencies. While the Biden administration rightly acknowledges that immigrants are our family members, our coworkers, and our neighbors, for now it has chosen to continue giving ICE officers significant discretion to conduct operations that harm our communities and tear families apart.”
Litigation was already pending over the “pause.” On Feb. 23, a federal judge in Corpus Christi granted a preliminary injunction blocking the moratorium, extending a temporary injunction he had issued Jan. 26. This was a victory for Texas Attorney General Ken Paxton, who had filed a lawsuit against the “pause.” (Politico) Ironically, by the time of this ruling, the “pause” was already partially lifted by the new DHS memo.
Ominously, the “pause” was meeting with overt, defiant non-compliance from ICE. The New York Times decried in an editorial on Feb. 10 that the US is sending deportees rather than aid to crisis-stricken Haiti: “A plane arrived [in Port-au-Prince] from the United States on Monday. But instead of help or hope, it carried several dozen Haitians, including a 2-month-old and 21 other children, deported by US Immigration and Customs Enforcement. President Biden had ordered a 100-day moratorium on such deportations, but a Texas judge temporarily blocked the order, prompting the agency to defy the administration’s wishes and accelerate deportations. More such flights to Haiti are expected through the week.”
A whistle-blower complaint filed on Feb. 1 charges that a top Trump DHS official sought to undermine Biden’s new immigration policy by agreeing to hand effective control to the union representing ICE agents. An attorney at the Government Accountability Project filed the complaint with Congress, the DHS inspector general and the Office of the Special Counsel, which protects whistle-blowers. He attached copies of three “memorandums of understanding” signed by DHS official Kenneth Cuccinelli and union president Chris Crane. The memos were signed on Jan. 19, Cuccinelli’s last full day in office, granting “extraordinary power and benefits” to the union, including the ability to indefinitely delay changes to immigration enforcement policies and practices. The union, the National ICE Council, of course endorsed Trump for the presidency. (NYT, CNN)
The memos were supposedly approved by a union contract signed by the Trump administration, which Biden abrogated after the whistle-blower came forth. (The Hill)
Cuccinelli’s tenure as acting deputy secretary of Homeland Security and acting director of Citizenship & Immigration Services (USCIS) was clouded by a federal court ruling last March finding that his appointment to the posts by Trump had been unlawful. Under the Federal Vacancies Reform Act, an official temporarily filling a cabinet-level position before Senate confirmation must be next in the line of succession. Trump had apparently cut the line when appointing Cuccinelli in 2019 in order to have DHS under the de facto control of someone who shared his hardline anti-immigrant agenda. (NYT, NPR)
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