DHS stresses officer discretion in new deportation priorities

The Biden administration on Thursday unveiled new enforcement priorities for its border officials, continuing a focus on those with a serious criminal record while encouraging immigration officers to weigh the totality of a migrant’s circumstances before seeking to deport them. 

A new memo from the Department of Homeland Security (DHS) to each of its border enforcement agencies builds on earlier memos, directing officers to use their discretion before deporting. It encourages them to focus on the severity of a crime while avoiding deportation of those who have lived in the U.S. for years without incident.

“The majority of undocumented noncitizens who could be subject to removal — the majority of the more than 11 million people — have been contributing members of our communities for years,” DHS Secretary Alejandro Mayorkas said on a call with reporters. 

“The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he added. “We focus our resources because they are limited, and because of our dedication to doing justice.” 

The seven-page memo directs Immigration and Customs Enforcement (ICE) officers to consider the gravity, severity and sophistication of a crime committed by a noncitizen, including whether a gun or other weapon was used as well as whether the individual has a prior criminal record.

But it also outlines several mitigating factors, noting that officers can consider “advanced or tender age,” their length of presence in the U.S., whether a migrant was a victim of or witness to a crime, whether their removal would lead to loss of a provider or caregiver, and — if the person under consideration has a criminal history — whether they have shown evidence of rehabilitation or had their record expunged.

The memo, which is set to take effect in 60 days, keeps an element of the earlier interim enforcement priorities released in February by continuing to list those who entered the country after Nov. 1 of last year as a threat to border security, directing ICE to focus on them for deportation.

But the memo is a departure from that guidance, which had encouraged ICE officers to focus on those who had committed an aggravated felony.

Those guidelines had sparked pushback from Republicans, with many arguing the guidance risked excluding people convicted of drug offenses or other crimes. It also required ICE officers to get the approval of a supervisor before initiating deportations.

Texas and Louisiana found success in challenging the earlier memos, arguing border agents should be able to pursue migrants in “overlooked categories.”

Mayorkas said the department intentionally moved away from the categorical strategy it employed earlier this year.

“To treat people in questions of a public safety threat, categorically like that, actually, is not effective, [and] could lead to ineffective, and unjust results. And so therefore, we are requiring, and frankly, empowering our workforce, critically empowering our workforce, to exercise their judgment, their law enforcement judgment, make individual case-by-case determinations based on the totality of the facts and circumstances and answered the question whether the individual indeed poses a current threat to public safety,” Mayorkas said.

But some immigration advocates see a risk in leaving that level of decision making power in the hands of ICE officers.

“Immigration enforcement personnel during the Trump-era were able to operate in an environment where they could enforce immigration laws however they saw fit and do enforcement by dragnet and go after whoever they want to go after,” Jorge Loweree, policy director with the American Immigration Council, told The Hill.

“And trying to then create a new regime where you’re simultaneously trying to redirect enforcement resources but entrusting personnel to do the right thing and redirect that implementation with minimal oversight and direction is an experiment that we hope will be successful but will only succeed if there is robust oversight and meaningful consequences for personnel that rebel against the secretary’s directives.” 

Advocates also expressed concern that relying heavily on the criminal justice system to determine who should be prioritized for deportation would continue to import racial disparities.

“A lot of what goes into that determination continues to rely on things like, for example, police reports, or the charging decisions that prosecutors make or the sentencing decisions that they make, which we already know are incredibly biased in the criminal legal system,” Sirine Shebaya, executive director of the National Immigration Project of the National Lawyers Guild, said on a call with reporters.

“So the continuation of that framing, unfortunately, doesn’t actually address the racial equity and racial justice concerns.”

Mayorkas referred to the new memo as a “living document,” requiring an internal review 90 days after it takes effect to determine how it’s being implemented.

The memo also directs DHS to collect data on its enforcement efforts, noting that race and national origin should never be a factor in deportations.

But Loweree said the transparency around that data will be key.

“Understanding if there are racial disparities in the way immigration enforcement operates within the U.S. could really help us reshape the way the department does it’s work, but it depends on the timing of that analysis and whether it’s transparent and accessible to others versus just DHS,” he said.

Thursday’s memo largely mirrored previous guidance given to ICE prosecutors, likewise directing them to use prosecutorial discretion in weighing who should be a priority for deportation.

That memo allowed the agency’s lawyers to drop cases against green card holders and those who are elderly, pregnant or have serious health conditions or have been in the U.S. from an early age. It also advised lawyers to weigh other “compelling humanitarian factors,” and military service of a migrant of their family members.

Updated at 6:02 p.m.