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National Immigrant Justice Center Director of Policy Heidi Altman issued the following statement in response to Department of Homeland Security Secretary Alejandro Mayorkas’s new memo to U.S. Immigration and Customs Enforcement (ICE) regarding immigration enforcement guidelines:

“Coming in the wake of deportations of thousands of Haitian asylum seekers and news that the Biden administration has reneged on its commitments to end for-profit immigration detention, the secretary’s memo fails to meaningfully address the punitive and abusive culture that has characterized ICE for nearly two decades.

“This memo continues to place too much power over people’s fates and freedom in the hands of a corps of officers with an extensive history of racial profiling, due process violations, and human rights abuses. Inexcusably, the new enforcement guidelines prioritize the deportation of anyone who crosses the southern U.S. border without permission, which we fear officers will interpret to include asylum seekers and families who have been barred from requesting protection as the Biden administration continues to block asylum seekers from ports of entry.

“We are pleased to see the secretary offer some policy shifts responsive to communities’ demands that immigration decisionmaking should embrace the humanity and lived experiences of people living in this country and not rely solely on outdated measures based on convictions and gang databases. It is good that the secretary also commits to develop a ‘fair and equitable’ process through which individuals can seek review of enforcement actions taken against them. But ICE has proven over and over that it is not an agency capable of humane or fair decisionmaking, and any case review process must be independent of ICE and accessible to people who do not have lawyers.

“The secretary has a responsibility to oversee an immigration enforcement system that upholds justice and dignity. Unfortunately, these guidelines fall far short of the changes needed to achieve that vision.”

The memo itself will go into effect in 60 days (November 29, 2021). Here is a summary of its contents:

Acknowledgment of the long-standing executive authority to exercise discretion in immigration enforcement: The memo begins with a reminder that the exercise of prosecutorial discretion is well established in the immigration arena. The Department of Homeland Security has historically justified its exercise of prosecutorial discretion in the limited availability of enforcement resources. In this memo’s opening section, Secretary Mayorkas repeats this justification but also, importantly, notes that the use of discretion is in the interests of “[j]ustice and our country’s well-being.”

Immigration enforcement priorities: NIJC and our partners in the We are Home campaign have repeatedly called on the Department of Homeland Security to abandon the long-standing and harmful framework for immigration management that prioritizes individuals for enforcement, and instead adopt a framework that prioritizes the provision of protection and relief. We are disappointed that the secretary did not change this basic framework. Instead, the memo maintains the three categories provided in its interim memo for “civil immigration enforcement priorities.” These categories are outlined as follows:

  1. Individuals defined by DHS as a “threat to national security”: This category is defined to include those who engaged in or are suspected of terrorism or espionage “or who otherwise pose a danger to national security.”
  2. Individuals defined by DHS as a “threat to public safety”: This category is defined to include those who pose “a current threat to public safety, typically because of serious criminal conduct.” DHS personnel are instructed that they “should not rely on the fact of a conviction or the result of a database search alone” in making an enforcement decision. The memo does not include particular categories of criminal offenses that trigger the enforcement priority, as were included in the February interim enforcement memo, a welcome change. The memo does provide a non-exhaustive lists of aggravating factors that would militate in favor of enforcement, and mitigating factors that would militate against enforcement, as follows:
    • Aggravating factors defined to include: gravity of offense and sentence imposed; nature and degree of harm caused by an offense; sophistication of the criminal offense; use or threatened use of firearm or dangerous weapon; and/or serious prior criminal record.
    • Mitigating factors defined to include: advanced or tender age; lengthy presence in the U.S.; a mental condition requiring care or treatment; status as victim of crime or a victim, witness, or party in legal proceedings; the impact of removal on family in the U.S.; eligibility for humanitarian protection or other immigration relief; military or other public service provided by the person facing enforcement or their immediate family; time since an offense and evidence of rehabilitation; and/or if the conviction was vacated or expunged.
  3. Those individuals defined by DHS as a “threat to border security”: This category is defined to include all people who were apprehended by DHS at the border or a port of entry “while attempting to unlawfully enter the United States” or who was apprehended in the United States “after unlawfully entering after November 1, 2020. In a harmful omission, this section does not explicitly address those entering with the intention to seek asylum, which is a lawful right protected under U.S. law.

Provisions regarding civil rights and civil liberties and retaliation: The memo clarifies that neither protected grounds such as race, religion, gender, sexual orientation or gender identity, national origins nor a person’s exercise of their First Amendments rights should be factors in a decision to take enforcement action. Specifically, the memo acknowledges that employers and landlords often exploit immigration status in light of vulnerability to deportation, and provides that a person’s exercise of workplace or tenant rights, or role as a witness in a labor or housing dispute, should be considered a positive mitigating factor in the exercise of prosecutorial discretion.

Training and oversight: The memo directs the creation of a rigorous training program and materials, as well as a short-term and long-term review process to ensure effective implementation. Component agencies within DHS are instructed to create processes to collect “detailed, precise, and comprehensive data as to every aspect of the enforcement actions [taken] pursuant to this guidance, both to ensure the quality and integrity of our work and to achieve accountability for it.”

Case review process: The memo commits to the establishment of a “fair and equitable” case review process that will provide individuals and their attorneys a chance to seek review of enforcement actions taken.