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The White House Rolls Out New Guidelines For ICE, But Defends Trump-Era Policy


The Biden administration is responding to criticism of how it handled thousands of mostly Haitian migrants at the border in Del Rio, Texas. We start this hour with two important developments. First, new enforcement guidelines limit who immigration authorities can arrest inside the United States. And second, a court of appeals ruled that the Biden administration can continue to keep migrant families out under a public health order known as Title 42. NPR's Joel Rose covers immigration and joins me now.

Hi, Joel.


FADEL: So first of all, let's talk about the Title 42 policy. What is it? And why has it been so controversial?

ROSE: Right. Well, this is a public health order, as you say, that was first put in place by the Trump administration back at the beginning of the pandemic. And it allows immigration authorities to quickly expel migrants at the border without giving them a chance to ask for asylum. And it's a big deal now because it has allowed the Biden administration to expel thousands of Haitian migrants. More than 5,000 have now been expelled to Haiti. And Biden administration officials say this is a public health policy, not an immigration policy. But immigrant advocates say it was clearly an immigration policy when the Trump administration did it, and they argue it still is. They have been in court trying to block it.

FADEL: So what's the latest with that legal battle?

ROSE: Well, a federal appeals court today said that Title 42 can continue for now. Here is the back story. A few weeks ago, a federal judge ruled against Title 42. Judge Emmet Sullivan in Washington, D.C., ruled that it is likely illegal for the administration to be expelling families under this policy. And he blocked the administration from doing that, but he stayed his ruling for 14 days to give the administration time to appeal, which it did. That stay expired today, and now the D.C. Circuit Court says Title 42 can continue for now while these legal proceedings continue.

FADEL: So break down what this means for migrant families.

ROSE: Well, it's definitely disappointing for migrants and immigrant advocates. They say this policy is expelling migrant families back to danger in places like Mexico or Haiti. But in practice, the Biden administration has already been allowing many families to enter the U.S. - not all, but many thousands - despite Title 42. And we did see that again in the situation in Del Rio, Texas, where many thousands of migrants traveling in families were allowed into the U.S., where they can seek asylum protections.

FADEL: So let's turn now to immigration enforcement inside the U.S. And the Biden administration issued new enforcement guidance today. What does that say?

ROSE: Right. This is a set of rules for the entire federal immigration apparatus but especially for Immigration and Customs Enforcement. And it sets priorities that limit who ICE officers and agents can target for arrest and deportation inside the U.S. And it's a big departure from the Trump administration guidance, when ICE officers were free to arrest anyone they encountered who was in the U.S. illegally. Under this new guidance, being undocumented, quote, "should not alone be the basis," unquote, for ICE to arrest someone. Agents are told to focus on immigrants who are considered a serious threat to public safety or national security or those who have just crossed the border. And these guidelines also spell out who ICE generally should not attempt to arrest or deport. And that's a list that includes farmworkers, the elderly, also immigrants who speak out against unscrupulous landlords or employers or at public demonstrations.

FADEL: So what's the reaction been?

ROSE: Well, immigration hard-liners do not like this guidance. They say the Biden administration is handcuffing ICE agents, which has led to fewer arrests of immigrants this year than under former President Trump. But some immigrant advocates are underwhelmed by this guidance too, especially compared to the interim guidance that the Biden administration put out back in February. This gives more leeway to individual ICE officers to make decisions about who to arrest and deport, and advocates are worried that that is a recipe for abuse by officers who want to enforce the law to the max.

FADEL: The Biden administration's critics on both sides of the aisle have called its immigration policy incoherent. Are these developments today likely to change that at all?

ROSE: I don't think so. I mean, there's something here to hate for everybody. On one hand, the administration is fighting to continue this Title 42 policy that immigrant advocates say is basically indistinguishable from the Trump administration's border policy. And on the other hand, the administration is sharply limiting ICE enforcement, which hard-liners say is akin to abolishing ice without actually doing it. The administration would say that it is trying to strike a balance here. But to a lot of critics, as you say, it looks just incoherent.

FADEL: That's NPR's Joel Rose.

Thank you, Joel.

ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.

Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.