Biden issued a new directive on immigration enforcement on his first day in office: Under the new memorandum, Immigration and Customs Enforcement (ICE) were to focus their efforts on threats to national security, threats to public safety and immigrants who entered the U.S. illegally on or after Nov. 1.
ICE dropped "detainer" requests – which require state and local law enforcement to hold a person who potentially entered the U.S. illegally – against 26 people as a result of the change in policy, according to Jason Clark, chief of staff at the Texas Department of Criminal Justice.
Most of the 26 were convicted of drug charges or drunk-driving offenses, but two men were convicted of sexually assaulting a teenager and a third was convicted of indecency with a child.
People convicted of sex offenses against minors still qualify for enforcement under the Biden policies, as the memorandum defines public safety threats as people "who have been convicted of an aggravated felony."
The three were not released after discussions in recent weeks between the state prison system and immigration authorities. But the process of keeping them in custody raised alarms that ICE was declining to detain convicts contrary to immigration law, officials said.
ICE confirmed to Fox News that it is holding Jose Lara-Lopez, 41, following his release from the Texas State Penitentiary, where he was incarcerated for sexually assaulting a minor – pending disposition of his immigration proceeding.
ICE "makes arrests and custody determinations on a case-by-case basis, based on the totality of the circumstances and does so in compliance with federal law and agency policy," the agency told Fox News in a statement.
The agency did not confirm whether or not it had originally planned to drop the detainer for Lara-Lopez or for the two other convicts.
Gov. Greg Abbott tweeted on Feb. 5 that "Biden’s immigration policy is threatening safety in Texas" after learning that Lara-Lopez should have been transferred to ICE custody, but instead may have been scheduled to be released.
Lara-Lopez pleaded guilty two years ago in Houston to sexually assaulting a teenager.
Application of Biden’s new guidance appears to be uneven across the country, with immigration lawyers in other states reporting that ICE has declined to release immigrants the lawyers believe should be newly allowed to go free.
An officer in ICE's Houston field office, which was involved in Lara-Lopez's case, wrote last month in an email first given to Fox News that agents were to stop all deportations and "release them all, immediately." That guidance was later retracted by a superior.
Texas successfully won a restraining order barring the Biden administration from enforcing a 100-day moratorium on deportations that was also a part of the same Jan. 20 memo.
District Judge Drew Tipton's order did not bar the implementation of the enforcement priorities.
The Associated Press contributed to this report.