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NIJC’s Analysis of ICE’s Latest Interim Enforcement Guidelines

The Acting Director of Immigration and Customs Enforcement (ICE) issued a memo today detailing guidelines that will drive the agency’s enforcement actions for an interim period expected to last no longer than 90 days.

National Immigrant Justice Center (NIJC) Executive Director Mary Meg McCarthy responded to the memo with the following statement:

“It is our hope that Secretary Mayorkas and the incoming Department of Homeland Security (DHS) and ICE leadership will use this interim period as an opportunity to take action to reorient the U.S. immigration system away from punitive enforcement and toward justice and compassion. This transitional period is a critical time during which immigrant communities continue to be harmed by ICE detention and unjust deportations. We are concerned that today’s memo reinforces the rhetorical and structural frameworks contributing to that harm, and does not go far enough to end the culture of cruelty that has taken hold within ICE.”

NIJC’s following analysis summarizes the interim memo’s provisions, notes key areas in which the memo missed the mark, and provides policy recommendations for DHS and ICE.

What does the memo say?

The new memo offers “interim guidelines” that add to and modify the interim enforcement priorities contained in a January 20th memo issued by then-Acting DHS Secretary Pekoske. These interim guidelines are effective immediately and will be in place until DHS issues final enforcement guidelines, expected in the next 90 days.

The interim guidelines apply to civil immigration enforcement decisions including (but not limited to):

  • Whether to issue a detainer (a request made by ICE to a local law enforcement to hold an individual until ICE takes them into custody) or take custody of a person subject to a previously issued detainer
  • Whether to issue or cancel a Notice to Appear (an immigration charging document)
  • Whether to stop, question, or arrest a person for immigration reasons
  • Whether to detain or release a person from immigration custody
  • Whether to grant deferred action or parole
  • When to execute a final order of removal

The memo lists the following categories of people whom the Biden administration will consider priorities for detention and deportation during the interim period:

  1. People considered to pose a national security risk. This group is defined as individuals  engaged in, or suspected of engaging in, terrorism, espionage, or related activities, or whose arrest and custody are necessary to protect the United States’ national security.
  2. All people who entered the United States on or after November 1, 2020, at the border or otherwise, a group ICE considers a “border security” priority.
  3. Individuals whom ICE determines to  pose a “public safety risk” and who fall within one of the following three categories:
    • have a conviction defined under immigration law as an “aggravated felony” (a notoriously complex and overly broad legal term of art)
    • have been convicted of an offense for which an element was active participation in a criminal street gang
    • intentionally participated in an organized gang or transnational criminal organization and are 16-years-old or older (this category may apply even if an individual was never convicted of a crime)

The memo notes that to determine whether an individual is a “public safety risk,” ICE officers must assess the “extensiveness, seriousness, and recency” of a conviction as well as  mitigating positive factors such as the individual’s family and community ties, health, and safety, and evidence of rehabilitation.

The memo leaves room for ICE to deport individuals outside these priority categories if they receive pre-approval:

ICE officers must obtain pre-approval from either their field office director or special agent in charge before arresting or detaining individuals who do not fall into one of the three priority categories described above. The memo requires the associate directors for Enforcement and Removal Operations and Homeland Security Investigations to provide weekly reports on enforcement actions undertaken to the ICE Director, to be made available to the Office of the DHS Secretary.

Where does the memo miss the mark?

We fear the memo suggests that the Biden administration is poised to continue past administrations’ mistakes of framing groups of immigrants as threats rather than ensuring people’s rights are protected. Targeting particular communities for enforcement, particularly when using categories imported from a flawed criminal legal system and outdated overly broad definitions of “terrorism,” is certain to cause harm to communities already living in constant fear of deportation and separation from their loved ones. Going forward, Secretary Mayorkas and the incoming ICE director must flip this framework to focus on broad categories of people who should be protected from detention and deportation, without exception. In all cases, humanitarian and family unity factors should guide decision-making.

This memo perpetuates inaccurate, outdated, and harmful narratives about the place immigrants and asylum seekers have in our communities.

  • The memo presumes that everyone who has recently arrived to the United States should be considered priorities for “border security enforcement and removal,” falsely conflating border security with migration and failing to address the needs of asylum seekers and unaccompanied children who come seeking safety. Casting these groups as security risks plays into false narratives that have been used to justify the inhumane treatment of people seeking refuge, and undermines the United States’ obligations under international and domestic law to provide a safe haven for asylum seekers.
  • The memo falsely conflates immigration status and prior criminal legal involvement with public safety risk. It promotes a distorted view of public safety and continues to use the immigration system to re-punish people who have already completed their criminal sentences. Lawmakers and the public are coming to terms with the structural racism underlying the entirety of the American criminal legal system; now is the time to stop relying on this system as a proxy for immigration enforcement.
  • The memo further presumes that youth and adults are public safety threats if there is “reliable evidence” that they participated in a gang or have been convicted of an offense that includes an element of gang participation. In doing so, DHS places two groups in its bulls’ eye: asylum seekers who escaped gang conscription before they fled to the United States, as well as Black and Brown communities who have been wrongfully labeled as gang members in racist and unreliable police databases. There is no legitimate justification for applying a blanket rule that treats these groups as public safety threats.

The memo fails to ensure meaningful changes in ICE’s culture of cruelty. For the past four years, NIJC clients have been harmed by decision-making by line ICE officers who operate within a culture of cruelty. Even prior to the Trump administration, NIJC’s legal team and clients witnessed the harms that flow from the power amassed in individual ICE field offices, where anti-immigrant sentiments are prominent. ICE’s new interim memo leaves too much discretion with field office leadership and staff to interpret the categories of presumptive risk without considering the positive factors that should protect an individual from arrest and detention. Line officers should not be entrusted to make complex legal determinations for which they are not trained, including assessments of what convictions constitute an “aggravated felony.”

Recommendations for DHS and ICE

  1. Alleviate the harms faced by those already in the system: Dismantling DHS’s detention and enforcement system requires a concerted focus on developing new systems for managing migration. It also, critically, requires alleviating the suffering endured by thousands of individuals currently in ICE detention and the more than one million individuals in removal proceedings.
    • Don’t leave behind the 14,000 people already detained by ICE in dangerous conditions. ICE must swiftly move to establish an affirmative file review process to consider release for all persons in custody and ensure the release of individuals who fall outside the interim enforcement priorities. This process should prioritize people who are most vulnerable to harm in custody including families and children, transgender individuals, HIV+ individuals, pregnant women, and those at heightened risk of COVID-19. NIJC and more than 100 other organizations sent a letter to Secretary Mayorkas with this ask last week.
    • Ensure meaningful access to prosecutorial discretion for the more than one million people already in immigration court proceedings. This memo outlines a deliberate process of review of new ICE enforcement actions but does not address how those already impacted by enforcement actions can seek review of their cases.
  2. Dismantle and rebuild moving forward: NIJC has previously outlined priority action items for the agency to undertake to ensure that the promise offered by these preliminary DHS memos is realized, and we reaffirm these asks here.
    • End immigration detention: DHS must quickly and dramatically reduce the number of people in ICE detention. In addition to the file review process and urgent releases described above, the administration should appoint a taskforce or commission to compose a plan for the full phase-out of detention. The White House should expand the ban on private prisons to DHS facilities, and set in motion termination of ICE contracts with county jails and private prisons, beginning with the facilities with the worst track records of abuse and corruption. We call on DHS and the Department of Justice to put in place guidance adopting a presumption of liberty for all persons in the immigration system and ensuring that everyone in ICE custody has access to individualized consideration of release.
    • End destructive and unjust enforcement: The administration should issue a final prosecutorial discretion policy that embraces the agency’s full authority to defer removal and provide protection and work authorization for undocumented communities. DHS must end its reliance on the criminal system as a proxy for immigration enforcement priorities in its final policy guidance, to avoid importing the structural racism of the criminal system directly into U.S. immigration policy. DOJ should formally suspend criminal prosecutions for unauthorized entry and reentry, recognizing that these prosecutions are rooted in a racist history and layer an additional punishment on arriving migrants.
    • End the police-to-deportation pipeline: The administration must terminate all 287(g) agreements (including Warrant Service Officer agreements) and terminate Secure Communities and the use of ICE detainers across all programs. Over 60 members of the U.S. House of Representatives recently made these same asks in a letter to DHS. The administration must also eliminate funding conditions that require state and local cooperation with federal immigration law enforcement. The administration should appoint a commission to study and analyze the extent of information sharing through databases and technology and take steps to reduce such information sharing significantly.
    • Welcome asylum seekers at the southern border: NIJC is outraged at the continued expulsions of families and children and asylum seekers from the border under the harmful Title 42 border closure policy. The administration must heed civil society and public health experts’ calls to end Title 42 expulsions and put a system in place to ensure the ability to welcome and process asylum seekers into the country without the use of detention and in partnership with community-based support programs. That program must be in accordance with public health guidelines, international treaty obligations, and Congress’s commitments under the Refugee Act of 1980.