On September 30, 2021, Secretary of Homeland Security Alejandro N. Mayorkas announced new Guidelines for the Enforcement of Civil Immigration Law that affect immigration enforcement priorities nationwide. The new guidelines are intended to better focus the Department of Homeland Security’s (DHS) resources on the apprehension and removal of noncitizens who pose a threat to U.S. national security, public safety and border security. In support of the changes, DHS claims the new laws are a break from the categorical approach to enforcement since they require an assessment of the individual and all the facts and circumstances to advance the interests of justice.
The new policy does not take effect until November 29, 2021. Until then, DHS will continue following the interim priorities as constrained by the Fifth Circuit’s September 15th ruling. https://www.ilrc.org/enforcement-priorities-litigation-update-september-2021
The Enforcement Priorities To Watch
There are three general priority categories (substantially the same as before) targeted for enforcement actions:
- National Security – people the agency alleges are involved in terrorism, espionage, or related activities, or who otherwise pose a danger to national security.
- Border Security – people apprehended trying to enter unlawfully and who entered unlawfully after Nov. 1, 2020.
- Public Safety – people who pose a current threat to public safety, “typically because of serious criminal conduct.”
The “Public Safety” Category
The Public Safety category is, perhaps, the most ambiguous and therefore requires some further explanation. Assessing whether someone is a public safety threat is now entirely in the discretion of DHS officers. This means that no particular behavior, criminal conviction, or other conduct automatically makes someone a public safety threat or a priority for enforcement action.
Instead, DHS offers the following undefined aggravating and mitigating factors to make this determination (additionally, agents may consider other factors, including the “broader public interest”):
- Aggravating factors that weigh toward taking enforcement action:
- The gravity of the offense and sentence imposed;
- Nature and degree of harm caused by the offense;
- Sophistication of the criminal offense;
- Use or threatened use of a firearm or dangerous weapon;
- A serious prior criminal record.
- Mitigating factors that weigh in favor of the immigrant and against taking enforcement action:
- Advanced or tender age;
- Lengthy presence in the United States;
- Mental condition that may have contributed to the conduct, physical or mental condition requiring care or treatment;
- Status as a victim of crime or a witness/victim or party in legal proceedings;
- Impact of the removal on family in the U.S., such as loss of caregiver or provider;
- Eligibility for humanitarian protection or other immigration relief;
- Military or public service of the noncitizen or their immediate family;
- Time since an offense and evidence of rehabilitation;
- Conviction was vacated or expunged;
- A person’s exercise of workplace or tenant rights, or service as a witness in a labor or housing dispute.
The memo directs officers to “obtain and review the entire criminal and administrative record and other investigative information” to assess the case and states that agents should not rely on a conviction or a database search alone. In practice, however, ICE doesn’t generally identify mitigating factors, and is unlikely to delve deep into the underlying circumstances. The guidance also refers to respecting civil rights and guarding against the use of immigration enforcement as a tool of retaliation, but provides very little detail of how these principles apply.
The Hard Facts
These new enforcement priorities leave a LOT of room for ICE agents to make their own, possibly biased decisions about an individual. Not only are there no strict bright-line rules as outlined in previous memos, the new priority guideline enforcements do not provide a definition of “serious criminal conduct,” leaving it to the discretion of ICE officers to take actions without any supervisor input or approval. Several states have challenged the DHS priorities policies and it remains to be seen how these new enforcement priorities will interact with the litigation.
Although the memo lays out some guidance, there’s a lot of gray area. For 90 days after implementation, DHS will be reviewing enforcement decisions to monitor execution. During this period, it’s imperative that advocates share their voice for needed changes and present their own evidence.
Policies Differ From Initial Announcement By The Biden Administration In January 2021
Although the first set of priorities announced in January were specified as interim policies, the new priorities are, in fact, “permanent” and will remain indefinitely. Additionally, the pre-approval process for ICE agents to get authorization from ICE supervisors before taking enforcement actions has been eliminated. What’s most disheartening is the fact that the new enforcement priorities no longer identify people with aggravated felonies or gang-related convictions as specific priorities. However, under this guidance, ICE may continue to take enforcement action in those cases.
The Law Office Of Michele Alcalde Helps Immigrants And Their Families
There is recognition that the majority of the more than 11 million undocumented or otherwise removable noncitizens in the United States have been contributing members of our communities across the country for years. However, in the present political environment, immigration is more difficult than ever. Immigrants who hope to reunite with loved ones and those who have been arrested and/or face the risk of deportation, have more than enough cause to be concerned.
The Law Office of Michele Alcalde can help you deal with immigration issues and criminal defense concerns. As a Crimmigration attorney, Michele has the experience, know-how and compassion to assist you in facing such daunting matters. She is dedicated to helping the United States remain a haven for immigrants looking to pursue the American dream. Find us online or call us at 732.766.1407.
Posted in: Immigration