February 26, 2021 Update: Judge Tipton entered a temporary restraining order against the removal pause discussed in this article, blocking it indefinitely [link].

January 26, 2021 Update: Judge Drew Barnett Tipton of the United States District Court for the Southern District of Texas entered a temporary restraining order against the memorandum discussed in this article suspending most removals for 100 days [link]. We will update the site with more information on the legal proceedings on the suspension as they proceed.

On January 20, 2021, the acting Secretary of Homeland Security, David Pekouske, published a memorandum titled “Review of and Interim Revision to Civil Immigration and Removal Policies and Priorities,” [link] which details new civil enforcement priorities and a 100-day pause on most removals. In this article, we will review the 100-day pause on certain removals. In our companion article [see article], we will review the new enforcement priorities.

100 Day Pause on Removals

The Acting Secretary imposed a 100-day pause on certain removals in order to prioritize the DHS’s enforcement of security and asylum processing at the border, to comply with relevant COVID-19 protocols, and to implement his new interim enforcement priorities [see article].

For these reasons, the Acting Secretary ordered DHS to immediately pause removals of any noncitizens with final orders of removals for 100 days, with certain limited exceptions listed below. The order took effect on January 22, 2021.

Exceptions

“The pause on removals applies to any noncitizen present in the United States [on January 22, 2021] with a final order of removal, except one who:

1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism, espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.”

Next Steps

The Acting Director instructed ICE to promulgate operational guidance for implementing the 100-day removal pause by February 1, 2021. He also instructed ICE to provide a process for an individualized review of all cases involving aliens who have been ordered removed for 90 days or more, and assessments of alternatives to removal in those cases.

No Private Right

Notwithstanding the pause, the DHS has taken the position that the memorandum itself does not create any enforceable right or benefit for aliens who may be subject to removal.

Reviewing the Removal Pause

The 100-day pause on removals is quite broad by its own terms. It applies to nearly all noncitizens who were physically present in the United States roughly before the November elections, specifically before November 1, 2020. The only exceptions in those cases are for noncitizens who waived their rights to remain in the United States (assuming procedural regularity) or for limited cases wherein ICE at a high level determines that the noncitizen is a national security risk or that he or she must be removed under law. The suspension of removals does not, by its terms, apply to aliens who were not present in the United States before November 1, 2020.

Although the memorandum does indicate that DHS will consider the disposition of forestalled removal cases after the expiry of the 100-day period, it does not give specific guidance on what the DHS’s new policy will be. Therefore, noncitizens with final orders of removal who may benefit from the pause should not assume that they will be protected from removal indefinitely. Those who hope to remain in the United States should consult with an experienced immigration attorney for a case-specific assessment of whether there are any legal avenues to reopen proceedings or appeal the removal order to Federal court.

It is also worth noting that the memorandum may be subject to litigation going forward — the Texas Attorney General has threatened to file suit [link] against the Department of Homeland Security if it does not rescind the memorandum, arguing that Texas would be disproportionately harmed by the new enforcement priorities and the moratorium on certain removals, and that the DHS is violating prior settlement agreements it entered into with Texas. We will update the site with more information if and when it becomes available.

Both the suspension on removals and the new interim removal priorities suggest a far more favorable environment for potentially removable noncitizens under the Biden Administration than under the Trump Administration. However, policies and priorities can change, and the memo by itself does not create legally binding commitments. Noncitizens with final orders of removal should consult with an experienced immigration attorney for case-specific guidance on how to proceed, including whether the pause in removals may offer more time in a particular case to pursue a legal remedy to removal.