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No, Biden did not instruct ICE to release all detained immigrants

January 27, 2021 GMT

CLAIM: A new order from the Biden administration directed Immigration and Customs Enforcement agents to release all detained immigrants immediately.

AP’S ASSESSMENT: False. The Biden administration tried to temporarily halt deportations for certain noncitizens, but did not order detained immigrants to be released from ICE custody. The false claim is based on the interpretation of a leaked email issued by a local ICE officer in Houston. The email in question was retracted the next day by the officer’s supervisor in charge of the Houston office.

THE FACTS: An internal email sent on Thursday to ICE officers at the Houston field office was leaked to Fox News. The email begins “I am just the messenger...” and instructs agents to “stop all removals.” It also appears to suggest immigrants in custody must be released. The email signature shows the author of the email holds the rank of assistant officer in charge for the Houston ICE field office. 

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“Release them all, immediately. No sponsor available is not acceptable any longer,” reads a line of the email.

Social media users and conservative websites cited the leaked email to spread the false claim that the Biden administration’s various immigration reforms had included ordering ICE agents to release all immigrants in custody immediately.

“Joe Biden Orders ICE Agents to Release All Illegal Aliens in Custody,” read the headline of one article that was widely shared on Facebook.

Biden’s Department of Homeland Security did issue a memo on Jan. 20 that established enforcement priorities, as well as paused deportations of certain noncitizens who already had a final order of removal. But that directive, which was temporarily blocked by a federal judge in Texas on Tuesday, did not include an order to release all immigrants from detention. 

A statement issued by ICE that was shared with the AP on Tuesday confirms the agency is not under orders to free everyone from ICE custody.

“U.S. Immigration and Customs Enforcement (ICE) continues to make custody determinations on a case by case basis, in accordance with U.S. law and Department of Homeland Security (DHS) policy,” reads the statement.

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“During the course of routine operations, individuals can be released from custody based on the facts and circumstances of their cases. Additionally, during the COVID-19 pandemic, ICE continues to release detainees when possible or when directed by court order to maintain a detention capacity at or below the 75% recommended by the Centers for Disease Control and Prevention (CDC).”

Furthermore, a review of the email thread from the Houston ICE office reveals that the email in question was retracted a day later and was misinterpreted in the media as an order to release all detained immigrants. 

The email thread became available to the public after attorneys for the state of Texas sued the Biden administration over its deportation moratorium. 

As part of that lawsuit, lawyers for Texas brought the leaked email to the attention of the federal judge overseeing the case. Attorneys from the U.S. Department of Justice submitted a copy of the email thread to the court. 

The email thread, which redacts email addresses and names, shows that after the first email was sent late Thursday morning by an ICE assistant officer in charge, an email went out Friday afternoon that read, “Retract this directive immediately. Please direct your supervisors to follow the memorandum issued.” That email was signed “FOD” which stands for field office director, the highest ranking position in the Houston office.

Another email in the chain clarifies the initial email was not instructing agents to release all detainees, but rather a specific subset. And the directive was a result of a federal lawsuit, not orders from the Biden administration.

That email highlights the instruction to “Release them all” followed a line that read, “Check the HRD at 1300hrs for new review decisions.” The email said “HRD” is a reference to a cohort of “high risk detainees” who had to be evaluated for release under an ongoing federal lawsuit called Fraihat v. ICE. 

In that lawsuit, a federal judge in California had previously ordered ICE to individually review detainees and identify those who were at high risk of serious illness or death from COVID-19 and prioritize their release. In October, the judge in that case noted ICE had “established a pattern of noncompliance or exceedingly slow compliance.”

“ICE does have the obligation to affirmatively review anyone in their custody with risk factors,” said Elizabeth Jordan, an attorney with Civil Rights Education and Enforcement Center, which represents immigrant detainees in that lawsuit. 

A review of ICE detention records by the AP show the population in ICE custody has been falling for months, a trend that accelerated due to policy changes related to the pandemic. In the final days of the Trump administration, the population in ICE custody had fallen to less than 15,000, a steep drop from the 55,000 who were detained 18 months earlier.

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This is part of The Associated Press’ ongoing effort to fact-check misinformation that is shared widely online, including work with Facebook to identify and reduce the circulation of false stories on the platform.

Here’s more information on Facebook’s fact-checking program: https://www.facebook.com/help/1952307158131536