Immigration and Customs Enforcement announced on Wednesday that it will halt most arrests and deportations, focusing only on individuals who are “public safety risks” and who are “subject to mandatory detention based on criminal grounds,” as the coronavirus sweeps across the U.S. and public health officials scramble to limit the virus’ spread.
Undocumented immigrants are often afraid to seek medical care for fear of deportation. And even as state and local officials encouraged anyone who needed medical treatment to seek help, ICE officers continued to make arrests, including in areas hit hard by the virus. But in the temporary change in enforcement, ICE also said that it won’t carry out operations near health care facilities, including hospitals, doctors’ offices, and urgent care facilities, “except in the most extraordinary of circumstances,” the agency said in a statement. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”
Immigration experts said ICE’s decision was somewhat unexpected, though they remain cautious about how to interpret it. “I’m always surprised to hear that they’re going to scale back on their efforts,” said Jennifer M. Chacón, a UCLA law professor who focuses on immigration. ICE’s statement marks a distinct shift from the agency’s operations under the Trump administration. Both Chacón and Karla McKanders, a law professor who directs the Immigration Practice Clinic at Vanderbilt University, said that it reminded them of the “felons, not families” immigration policy of the Obama administration. “You read it and it basically looks like the Obama-era enforcement priority statement, and you just wonder why it takes a pandemic to get ICE to think about prioritizing resources and focusing efforts on public safety,” said Chacón.
But there’s reason to be wary of how much will actually change. Like the Obama-era policy, one problem is that it’s unclear how ICE will decide who counts as a “public safety risk.” “I think [the language] is deliberately vague,” said Chacón. Chacón said she’s concerned that ICE’s definition of a criminal under the enforcement shift could include, for instance, anyone with a misdemeanor conviction or anyone who might be erroneously identified in a law enforcement database as a gang member. Congress has also defined the mandatory detention categories overbroadly, Chacón added, so “a lot of people who are not public safety risks are, according to the statement itself, still priorities for enforcement.” Chacón noted that the temporary stop to enforcement around health care centers is a victory, but she otherwise doesn’t find the announcement comforting.
Even if ICE does really scale back its arrests, “[t]here’s still a whole slew of immigration policies that make this kind of like a tiny dock in the broad trajectory of the [Trump] administration’s policies,” said McKanders. The statement doesn’t tell us anything about what’s happening to people in the deportation pipeline, for instance, and concerns about immigration court proceedings remain unanswered. ICE is still holding about 37,000 people in detention, even as lawyers, doctors, and former officials are urging the government to release immigrants from packed facilities that are effectively “powder kegs” for COVID-19. Crowded courts are also facilitating COVID-19’s spread. Immigration court officials have canceled all hearings for people who aren’t in detention, but the courts are still operating for individuals in ICE custody, despite the fact that immigration judges and lawyers—as well as the union representing ICE prosecutors—called on the Department of Justice to shutter them entirely on Sunday.
McKanders says she’s concerned about both the spread of the virus and access to lawyers and detention facilities. “You wouldn’t want a proceeding to take place where individuals don’t have access to counsel, and under these circumstances, we’re operating in uncharted territories,” she said. Chacón echoed McKanders’ fears: “[ICE’s statement] just seems to be focusing on the policing piece,” she said, “but it leaves a lot of unanswered questions about lots of people who are vulnerable—either to deportation or the virus, or both.”