DHS issues priority-based immigration law enforcement guidelines

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The department is reverting to Obama-era immigration enforcement measures based on a priority system instead of the more aggressive approach taken under the Trump administration. This approach, according to Homeland Security Secretary Alejandro Mayorkas, takes into account the department’s limited resources and the fact that a “removable non-citizen should not alone be the basis for coercive action against him. “.

Mayorkas pledged to issue guidelines after taking over as head of the department. Like the guidelines released in February, Thursday’s guidelines focus on national security, public safety and border security, but they put more emphasis on an officer’s discretion.

The department will prioritize certain undocumented immigrants for arrest and deportation, including terrorism suspects, persons with serious criminal conduct, or recent illegal franchisees.

“These guidelines do not 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 determine if the individual is in fact posing. a public problem threatens security, ”Mayorkas told reporters on Thursday.

A “targeted” approach

In the note released Thursday, Mayorkas writes that there are approximately 11 million undocumented migrants in the United States. “We do not have the resources to apprehend and deport every one of these non-citizens,” he wrote to acting director of immigration and customs Tae Johnson.

In exercising discretion over arrests and deportations of immigrants, Mayorkas says the department is guided by the fact that a majority of undocumented immigrants in the United States have “contributed members of communities for years.” , including people on the front lines battling Covid-19.

The new guidelines call for a “targeted” approach to immigration law enforcement.

For example, an undocumented immigrant suspected of terrorism or espionage is a priority for arrest and deportation, according to the memo.

As does someone who poses a “current threat to public safety, usually as a result of serious criminal conduct.”

The note recognizes that threats to public safety will not be determined by “clear lines or categories”, but rather require an assessment of the individual and the totality of the circumstances.

Aggravating factors can include a serious criminal history or the use of a weapon.

Meanwhile, mitigating factors could be age, mental health, or a long stay in the United States.

An undocumented immigrant is considered a “threat to border security” if arrested at the border or port of entry while attempting to enter the United States illegally or if apprehended in the United States after entering illegally after November 2020.

The new guidelines take effect in 60 days on November 29, 2021, replacing the interim guidelines issued in the early hours of the Biden administration.

The Trump administration has broadened the scope of arrests, removing targeted enforcement and repeatedly promising that anyone breaking immigration laws can be subject to immigration arrest, detention and deportation.

Legal challenges

But the application priorities are already the subject of ongoing litigation. A federal appeals court this month largely suspended a judge’s order blocking the administration’s enforcement priorities.
The case, brought by Texas and Louisiana, challenged a memo released at the start of President Joe Biden’s term that directed Immigration and Customs Enforcement to focus its arrests on certain undocumented immigrants, especially those who posed risks. for national security or had a serious criminal record.
The US 5th Circuit Court of Appeals ruled that the provisions did not eliminate the “broad discretion” of immigration officials to decide who should be subject to enforcement action, according to the ruling. . The part of the injunction that has not been suspended already complies with the general execution protocol.

“For these reasons, we see no strong justification for concluding that the detention laws (the illegal immigration reform and immigrant accountability of 1996) trump the deep-rooted tradition of enforcement discretion. when it comes to decisions taken before detention, such as who should be the subject of arrest, detainee and deportation proceedings ”, states the decision, drafted by Judge Gregg Costa .

“This means the United States has shown a likelihood of winning on appeal as the preliminary injunction prevents officials from relying on memo execution priorities for non-detention decisions Costa added.

The panel consisted of two people appointed by Obama and one person appointed by George W. Bush.

With the 5th Circuit ruling, the lower court’s order will be largely stayed while the case unfolds on the merits – unless the Red States successfully seek intervention from the 5th Full Circuit or the Supreme State Court. -United.

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