100-Day Pause on Removals: Currently Subject to A Temporary Restraining Order

The Administration placed a moratorium on nearly all removals for 100 days, effective no later than January 22, 2021. However, on January 22, Texas sued the U.S. government to stop the January 20 memorandum from taking effect, and on January 26, a judge then issued a temporary restraining order against the moratorium. As such, there is no pause on deportations at this time. The TRO is in effect for 14 days. Therefore, please be aware that briefing, a hearing, and/or new action will occur in the coming days on this matter.

The 100-day pause included the following limited exceptions:

  1. National Security: Cases in which there is a written finding by the ICE director that the foreign national has engaged in or is suspected of terrorism or espionage or poses danger to national security;

  2. Arrival After November 1, 2020: Cases in which the foreign national arrived in the U.S. on or after November 1, 2020;

  3. Voluntary Waiver of Right to Remain: Cases in which the foreign national chooses to complete the removal through a voluntary waiver of rights to remain in the U.S.;

  4. Other: Cases in which the Acting ICE Director, following consultation with the General Counsel, makes an individualized determination that removal is required by law.

The memorandum required that the Acting ICE Director issue written instructions with additional operational guidance by February 1, 2021. This forthcoming guidance will include the following:

  • Post-order 90-day review: Process for individualized review and consideration of the appropriate disposition for individuals who have been ordered removed for 90 days or more, to the extent necessary to implement this pause;

  • Alternatives to Removal: Assessments of alternatives to removal including, but not limited to, staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.

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