The Biden administration issued new guidelines to Immigration and Customs Enforcement personnel on Thursday that make clear that an individual’s lack of immigration status alone is not a reason for arrest or deportation and also provide officers flexibility to determine which “public safety” threats to focus on for apprehension.
The new guidelines, which will take effect in 60 days, come months after the Biden administration issued a previous interim memo outlining that officers should focus only on certain immigrants for arrest, including recent border crossers and those with specific criminal histories. Officers were told they needed approval from supervisors to arrest individuals outside of those parameters.
Unlike the Trump administration, which treated every undocumented immigrant as a priority for arrest and removal, the Biden administration wants to target certain types of undocumented immigrants, primarily people who are deemed “public safety” threats. Conservative critics have said officers have been hamstrung and effectively told not to do their jobs. The new priorities come as the Department of Homeland Security faces continued scrutiny for expelling thousands of Haitians from the southern border and a constant barrage of lawsuits from states.
The new memo creates fewer restrictions for officers than the previous interim guidelines, instead informing officers to conduct an overall assessment of an immigrant’s background. Aggravating factors that could lead to an arrest include the gravity and seriousness of an offense, while mitigating factors that could lead an officer to avoid making an arrest would include someone’s lengthy history in the US or familial ties.
In a memo, Department of Homeland Security Secretary Alejandro Mayorkas explained that the agency does not have the resources to target every one of the 11 million undocumented immigrants in the country and that many of those without legal status are contributing members of society. The guidelines issued by Mayorkas apply to ICE and US Customs and Border Protection.
“The fact that an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” Mayorkas wrote. “We will use our discretion and focus our enforcement resources in a more targeted way.”
The Biden administration kept as a priority for officers to arrest and deport immigrants who crossed the border without authorization after Nov. 1, 2020, and those who are suspected of national-security-related offenses. To monitor the implementation of the guidelines, DHS officials will analyze regular data of arrests and deportations. Extensive training will also be part of the implementation process. In addition, the memo includes a section that aims to guard against the use of ICE enforcement as retaliation by employers or landlords.
As the overall number of immigration-related arrests in the country has fallen, Biden officials have faced criticism from former DHS leaders who believe the agency’s priorities have not only created a “sanctuary” across the country for undocumented immigrants and have also dramatically scaled back the work officers signed up to do.
In many ways, the latest guidelines issued by Mayorkas provide greater discretion to officers on the front lines.
The previous memo outlined that the groups of people ICE officers will focus on include those suspected of being threats to national security, recent border crossers, and those who are considered threats to public safety. The agency said that means people who were “convicted of an aggravated felony or engaged in certain activity as part of a criminal gang or transnational criminal organization and there is reason to believe they currently pose a threat.”
ICE officers needed preapproval from their local superiors when deciding whether to arrest or deport people who were not a priority, and were required to justify the action through a written request. The new memo instructs officers to do a more thorough assessment, but it does not categorically list out convictions that are priorities or require preapproval for arrests.
John Sandweg, who ran ICE during the Obama administration, told BuzzFeed News that the guidelines issued Thursday were a necessary step to change the culture of the agency to focus on the quality of apprehensions instead of the numbers of people arrested and deported.
The challenge, Sandweg said, would come as the Biden administration implements its new priorities, as the public safety category is subjective. “This is putting a lot more trust in the agents’ approach,” he said, noting that immigrant advocates would likely be concerned about the new memo.
To that end, Sarah Deri Oshiro, managing director of the immigration practice at the Bronx Defenders, criticized the new guidelines for providing too much latitude to ICE officers.
“Over the past four years, we witnessed what happens when an administration empowers individual ICE officers to decide who merits detention and deportation: life-altering decisions are made arbitrarily; everyone is identified as an enforcement priority and people who have survived an interaction with the police are targeted for deportation without any consideration of the equities,” Oshiro said in a statement. “The final guidance issued by the Biden Administration feels no different. It places the burden on immigrants to prove their humanity and fails to provide concrete guidance for ICE officers exercising largely unchecked discretion when deciding whether to subject people to the cruelty of the deportation system.”
The new memo comes weeks after a federal judge in Texas temporarily blocked ICE from enforcing the previous priorities. The decision was later mostly stayed by an appeals court panel in the 5th Circuit.
“I am grateful to the ICE personnel for their candor and openness in our discussions about their critical law enforcement mission,” Mayorkas said in a statement. “The new guidelines will enable our Department to most effectively accomplish our law enforcement mission and, at the same time, advance our country’s well-being by recognizing the invaluable contributions of millions of individuals who are part of the fabric of our communities. The guidelines will help us exercise our prosecutorial discretion to achieve justice.”