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fully explore herein. Indeed, at one point, the Final Rule was effective in domestic filings nationwide, except in Illinois where it remained enjoined8, at least before that injunction itself was stayed by the U.S. Supreme Court.9
However, the 2019 Final Rule was ultimately vacated on the merits by the District Court for the Northern District of Illinois on November 2, 2020.10 Although that judgment was stayed pending appeal, that appeal was itself withdrawn by DHS during the current administration on March 9, 2021, meaning the District Court’s vacatur of the 2019 Rule went into effect.11
As a result, DHS has now published a new final rule which removes the 2019 Final Rule from the Code of Federal Regu- lations, and which restores the text to its status prior to the 2019 Rule. (Sleepy yet?)
ICE Priorities
On January 25, 2017, the prior admin- istration released Executive Order 13768, entitled “Enhancing Public Safety in
the Interior of the United States.”12 That Order greatly expanded the enforcement priorities of the Department of Home- land Security.13 For instance, DHS was instructed to prioritize the removal of individuals based not only on “pending” criminal charges, but even on as-yet-un- charged criminal conduct.14 That EO was revoked on President Biden’s first day in office.15 Appropriate agency heads were directed to review current actions and issue revised guidance in accordance with the broad policies expressed in the new Executive Order.
That same day, the Acting Secretary of DHS issued a Memorandum for ICE, CBP, and USCIS (another immigration agency component).16 Among other items (including a later-enjoined, and now-ex- pired, “pause” of certain deportations for a period of 100 days), the Memo established interim priorities for civil immigration enforcement.17
Under that Memo, DHS’s enforcement priorities fall under three broad categories: (1) individuals who are a threat to national
security; (2) individuals apprehended at the border on or after November 1, 2020, or otherwise not physically present in the United States on or before November 1, 2020; and (3) individuals who are a threat to “public safety,” such as individuals who had been convicted of an “aggravated felony.”18
Those priorities were later the subject of interim guidance issued on February 18, 2021.19 Although that interim guid- ance made certain modifications and/or clarifications to the earlier policy state- ments of DHS, it largely incorporated the three enforcement categories which had been previously adopted.20 It additionally included, as a “public safety” enforce- ment priority, individuals who had been convicted of an offense which involved being a member of a street gang, or who had otherwise participated in an orga- nized criminal gang or transnational criminal organization.21
The finalized enforcement priority memorandum has not yet been issued as of the time of writing this article.
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