Some thoughts on new #ICE priorities and moratorium memo. 1. The memo creates an interim system starting by 2/1/21 and running abt 100 days while DHS does full review. So folks will have time to critique this from both sides. This is just the start of building a new system. 1/

2. It has a refreshingly straightforward rationale: can’t deport everyone, have acute shortage of border resources, and there's a pandemic! So DHS must narrow its focus and guide agency personnel accordingly. Hard to imagine a non-frivolous challenge to that in court. 2/

3. The categories of priority individuals are narrower than any implemented in the last 20 years: a) Terrsm /espionage/other nat sec cases, b) recent arrivals (post-11/1/20), and c) people incarcerated AND convicted of ag fels AND and deemed public safety threat. 3/

On paper (big caveat!) these are much narrower than Obama-era analogues. Also, they apply at every stage – arrest, charge, detn, prosecution, etc. So shld limit street-level enfcmt and detention, not just what happens in court. Not perfect, but BIG step in the right direction. 4/

4. The moratorium starts earlier (by 1/22/21) and is narrower than the priorities. It exempts the first two groups, but still protects ag fels. People can waive its protxn (ie, agree to be deported), but must be given “a meaningful opportunity to access counsel” in advance. 5/

5. On paper this too is BIG improvement, though still not what rational policy requires. By far the most dangerous thing about ICE detn is that it spreads the virus. If safety were #1 priority, we would #FreeThemAll. Still, how m/ful this will be depends on implementation: 6/

a. How much enforcement outside the priorities will they tolerate? The memo says “nothing in this memo” bars enforcement against non-priorities. That could create a HUGE loophole. As with the Obama-era, getting line agency folks to take this memo seriously is the whole game. /7

b. How will they implement the access to counsel rule? More than 80% of detained people have no counsel. The memo describes an “individualized review” process that perhaps could deal with this problem. That’s a devil in the details for sure. /8

6. So let's see if new DHS can really make this memo work. Natl detn population as of 1/15/21 was 14,715. Success will be measured in big part by how far that number drops, and by how they solve the counsel problem. @ACLU @ACLU_SoCal @ReichlinMelnick @ImmCivilRights /end