For years, U.S. Immigration and Customs Enforcement (ICE) has taken a harsh, punitive approach that has ripped families and communities apart. The Trump administration’s approach was particularly cruel and xenophobic, resulting in the highest detention numbers the United States has ever seen.
ICE’s new enforcement priorities hopefully signal an important turn from the hate-driven enforcement of the Trump era.
On President Biden’s first day in office, he issued an executive order and accompanying Department of Homeland Security (DHS) memo. That memo put in place a 100-day review period, during which DHS will be reviewing and drafting new guidance on all aspects of immigration enforcement.
This week, DHS released new interim guidance for all ICE personnel until its review is complete. These new enforcement priorities—issued February 18—will be in effect until DHS Secretary Alejandro Mayorkas issues further guidance, expected in May.
What the February 18 ICE Guidance Covers
The guidance covers all ICE personnel and operations, including decisions about whether to:
- Detain a noncitizen, and whether to release a noncitizen now in detention.
- Put someone into removal proceedings or end removal proceedings that have already started.
- Stop or arrest a noncitizen only because of civil immigration law violations, such as overstaying a visa.
- Give a noncitizen temporary permission to be in the U.S. through “parole” or “deferred action.”
Who Are Enforcement Priorities Under the New Guidance?
The memo gives ICE staff guidelines about how to make such decisions by laying out three categories of enforcement priorities. Under this memo, ICE should be focusing its resources on people who fall into these three categories:
- National Security. This category includes only people engaging in terrorism or espionage, and people who threaten the national security of the U.S. The memo makes it clear that “general criminal activity” is not a national security threat.
- Border Security. This category is called “border security,” but does not focus on any actual threat. Instead, it establishes the seemingly arbitrary date of November 1, 2020 as a marker for border security. Anyone who entered the U.S. unlawfully after November 1, 2020 or was not physically present in the U.S. before that date falls into this category.
- Public Safety. This includes anyone whom ICE finds to be a “threat to public safety.” The individual also must meet one of two other criterion: have what is known under immigration law as an “aggravated felony” conviction (an overly broad definition that actually includes many crimes that are misdemeanors under state law) or a gang-related conviction. Anyone who is over 16 and has intentionally taken part in a gang will also be considered a public safety threat. ICE will continue to rely on deeply flawed “gang databases” to determine whether someone participated in gang activity.
Notably, ICE officers must now seriously consider the important question of whether a noncitizen with a criminal conviction in their past is actually a current threat to public safety.
The memo gives officers clear instructions on what to consider: how recent and how serious was any criminal activity? Are there other important factors, such as the person’s personal and family circumstances, any health or medical issues, ties to the community, or evidence of rehabilitation?
Officers are instructed to pay “particular attention” to cases in which the immigrant is elderly or has a serious illness (mental or physical) or has a pending immigration case or appeal.
Greater Accountability for ICE
The memo lays out several accountability mechanisms for ICE in carrying out these new priorities.
First, ICE officers will not need any approval to carry out enforcement against anyone in the priority categories above. They will, however, need approval from local supervisors if they want to conduct enforcement against anyone who does not fall into these categories.
In addition, the ICE director will receive a report that lays out all enforcement actions every week, as well as a justification for each one. These important mechanisms will help the Biden administration ensure that ICE is accountable and following the guidelines.
Important Next Steps for ICE and DHS
This memo represents a long-needed advance toward an immigration policy focused on protection and inclusion, but there are still important steps that the administration needs to take.
Key among those is addressing immigration detention. 14,000 people remain in immigration detention, even in the middle of a global pandemic. It is critical that DHS carefully review the files of the thousands of people in ICE detention—and approach all cases with a presumption that people should be released to the safety of their families and communities.
Further, DHS should move away from using detention at all in the immigration context, including by ending profit-driven detention contracts and investing in alternatives to detention programs.
The changes laid out in this memo could help the Biden administration begin the difficult task of holding ICE accountable while moving away from the unjust enforcement policies of previous administrations.