The January 20th Pause on Deportations: What You Need to Know

21 Jan The January 20th Pause on Deportations: What You Need to Know

On January 20, 2021, the Biden administration issued a memo declaring its intent to revive Prosecutorial Discretion.  The memo is called “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities.”

In simple terms, Prosecutorial Discretion is a decision not to deport everyone that could in theory be deported.  The Obama Administration set forth fairly specific guidelines for when it would exercise prosecutorial discretion; the new administration will do the same.

For now, we can turn to the January 20th DHS memofor some preliminary guidelines.  Some go into effect immediately.  Some go into effect on February 1st.

There are two groups of people this memo affects:

1. Non-citizens with final orders of removal
2. Non-citizens without deportation orders who are at risk of deportation

If you’re a non-citizen with a final order of removal

Beginning no later than January 22, 2021, the Biden Administration will immediately pause the vast majority of deportations for 100 days.

Who does this help?  Everyone with a final order of removal, with a few exceptions listed below.

But first, what is a final order of removal?  It includes: (1) non-citizens who have been to immigration court and received a final order of deportation from an immigration judge, and exhausted their appeals to the Board of Immigration Appeals; and (2) non-citizens who at some point received an expedited order of removal, usually if they were caught somewhere near the U.S. border.

If you have a final order of removal, ICE cannot physically remove you from the United States for 100 days.

Except in three situations:

1. If the Director of ICE finds that you have engaged in spying or terrorism;
2. If you were not physically present in the United States before November 1, 2020; or
3. If you voluntarily agreed to be deported (assuming you received the needed protections)

Note: The “pause” guidelines will be updated by February 1, 2021.

If you’re a non-citizen without a deportation order but you are still at risk of deportation

Let’s say you don’t have a final deportation order. But you are at risk of deportation, either because you entered the U.S. illegally, or you overstayed a visa, or you entered legally but committed a crime.You can get lawyer’s help against sexual crimes form here.

According to the memo, DHS will continue to  prioritize action against non-citizens in three categories:

1. People dangerous to national security
2. People who came to the US on or after November 1, 2020
3. People convicted of aggravated felonies AND who are determined to pose threat to public safety

Non-citizens in these categories are still at risk of being placed in deportation proceedings, and their cases will not be affected.

By contrast, the new memo states that ICE should NOT prioritize people who do not fall in the above categories.  Practically this means that if you’re not “dangerous” or a recent entrant to the U.S., ICE SHOULD NOT:

1. Arrest you
2. Place you in deportation proceedings
3. Detain you

ICE SHOULD:

1. Release you from immigration detention
2. Settle or join in motions to resolve your pending deportation case
3. Grant you deferred action or parole (which usually allows you to get work authorization)

Note:  These guidelines will rapidly become outdated. These outlines are very general and give ICE a lot of discretion.

What you need to do

1. If you have a pending deportation case, then you should contact your immigration attorney to discuss your options for resolving your court case
2. If you are at risk of of deportation, but you have not been placed in deportation proceedings, then you should wait patiently.  In 2021, we are likely to see new laws passed. Some may give you a chance to legalize your status.  If you have not already, you should contact an immigration attorney to find out if options are already available to you.
3. If you have a final order of deportation, you should contact an immigration attorney about filing for something called a “stay of removal,” by filling out a Form I-246.  Even if ICE does not grant a stay of removal, ICE cannot  physically remove you from the United States for the next 100 days.