DHS releases priority-based immigration enforcement guidelines

The Department of Homeland Security on Thursday released guidelines about who is to be prioritized for immigration enforcement, following up on a set of interim guidance released early in the Biden administration.

The department is returning to Obama-era immigration enforcement measures based on a priority system instead of the more aggressive approach taken under the Trump administration. That approach, Homeland Security Secretary Alejandro Mayorkas argues, takes into account the department’s limited resources and the fact that a “removable noncitizen should not alone be the basis of an enforcement action against them.” Mayorkas pledged to release guidelines after assuming the helm of the department. Like the guidance released in February, Thursday’s guidelines focus on national security, public safety and border security, but they place a greater emphasis on an officer’s discretion.
The department will prioritize certain undocumented immigrants for arrest and deportation, including terrorism suspects, someone with serious criminal conduct or recent unlawful border-crossers.
“These guidelines don’t take a categorical approach. They call for an individualized determination in each case. Assess the individual, investigate the facts, understand the totality of the facts and circumstances and then make a determination whether the individual in fact poses a public safety threat,” Mayorkas told reporters Thursday.

A ‘targeted’ approach

In the memo issued Thursday, Mayorkas writes that there are an estimated 11 million undocumented people in the US. “We do not have the resources to apprehend and remove every one of these noncitizens,” he wrote to the acting Immigration and Customs Enforcement Director Tae Johnson.
In exercising discretion for immigration arrests and deportations, Mayorkas says the department is guided by the fact that a majority of the undocumented immigrants in the US have been “contributing members of communities for years,” including people on the frontlines battling Covid-19.
The new guidelines call for a “targeted” approach to immigration enforcement. For example, an undocumented immigrant who is suspected of terrorism or espionage is a priority for apprehension and removal, according to the memo.
As is someone who poses a “current threat to public safety, typically because of serious criminal conduct.”
The memo acknowledges that public safety threats won’t be determined by “bright lines or categories” but instead requires an assessment of the individual and the totality of the circumstances.
Aggravating factors could include serious prior criminal history or use of a weapon. Meanwhile, mitigating factors could be age, mental health or a lengthy stay in the US. An undocumented immigrant is considered a “threat to border security” if they are arrested at the border or port of entry attempting to unlawfully enter the US or if they are apprehended within the US after unlawfully entering after Nov. 2020.
The new guidance takes effect in 60 days on November 29, 2021, replacing the interim guidance released in the early hours of the Biden administration.
The Trump administration expanded the scope of arrests, removing targeted enforcement and repeatedly promising that anyone in violation of immigration laws may be subject to immigration arrest, detention and deportation.

Legal challenges

But enforcement priorities are already the subject of ongoing litigation. A federal appellate court this month largely halted a judge’s order blocking the administration’s enforcement priorities.
The case, brought by Texas and Louisiana, challenged a memo issued in the beginning of President Joe Biden’s term that instructed Immigration and Customs Enforcement to focus its arrests on certain undocumented immigrants, particularly those who posed national security risks or had serious criminal histories.
The 5th US Circuit Court of Appeals found that the provisions do not eliminate immigration officials’ “broad discretion” to decide who should face enforcement action, according to the ruling. The part of the injunction that was not put on hold is already in line with general enforcement protocol.
“For these reasons, we do not see a strong justification for concluding that the (Illegal Immigration Reform and Immigrant Responsibility Act of 1996) detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings,” the ruling, written by Judge Gregg Costa, reads.
“That means the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos’ enforcement priorities for nondetention decisions,” Costa added.
The panel was made up of two Obama appointees and a George W. Bush appointee.
With the 5th Circuit’s decision, the lower court order will be largely paused while the case plays out on the merits — unless the red states successfully seek an intervention from the full 5th Circuit or the US Supreme Court.

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