Update June 28, 2022
A U.S. District Court for the Southern District of Texas vacated Secretary Mayorkas’s September 30, 2021, memorandum. The order, however, was stayed through June 24, 2022, to allow the Fifth Circuit the chance to rule on the government’s appeal. The Fifth Circuit did not rule and the motion remains pending. As such, the District Court’s decision to vacate took effect on June 24, 2022.
As such, ICE is no longer focusing its enforcement priorities on those who pose a threat to national security, public safety, and border security. DHS has stated that absent of the Guidelines, ICE agents and officers will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.
Update September 30, 2021
Secretary of Homeland Security Alejandro N. Mayorkas announced new Guidelines for the Enforcement of Civil Immigration Law to better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat.
Original February 18, 2021
ICE Acting Director Tae Johnson has issued a memo outlining the current enforcement priorities. It will remain in effect until DHS issues new enforcement guidelines, which the memo states will happen within 90 days.
Current enforcement priorities marks a significant shift from the deportation and arrest policies of the Trump administration which rendered almost all undocumented immigrants vulnerable to immigration detention and deportation.
There are three categories that are considered to be presumed priorities.
- Category 1: National Security. A noncitizen is presumed to be a national security enforcement and removal priority if:
- Engaged in or suspected of engaging in terrorism-related activities;
- Engaged in or suspected of engaging in espionage-related activities; or
- Otherwise necessary to protect national security. General criminal activity does not amount to a national security threat and should be analyzed under the Public Safety Category.
- Category 2: Border Security. A noncitizen is presumed to be a border security enforcement and removal priority if:
- Apprehended at the border or a port of entry while attempting to enter the country unlawfully on or after November 1, 2020; or
- Not physically present in United States before November 1, 2020. Note that this priority category will include future overstays who enter on or after November 1, 2020.
- Category 3: Public Safety. A noncitizen is presumed to be a public safety enforcement and removal priority if they pose a threat to public safety and:
- Have been convicted of aggravated felony as defined in INA § 101(a)(43); or
- Have been convicted of an offense with active gang participation as an element or are 16 years old or older and“intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization”
The above priorities shall be applied in the following enforcement and removal decisions including, but not limited to:
- Whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;
- Whether to issue, reissue, serve, file, or cancel a Notice to Appear;
- Whether to focus resources only on administrative violations or conduct;
- Whether to stop, question, or arrest a noncitizen for an administrative violation of civil immigration law;
- Whether to detain or release from custody subject to conditions;
- Whether to grant deferred action or parole; and
- When and under what circumstances to execute final orders of removal.
ICE officers will need preapproval from their superiors before arresting someone outside of these enforcement parameters.