Biden Administration Issues New Enforcement Priorities

On February 18, 2021, Immigration Customs and Enforcement (ICE) acting director Tae Johnson issued a memorandum offering interim guidance on the agency’s new enforcement priorities. According to the memo, ICE will prioritize the following groups of people for detention and deportation during the interim period:

• People considered to pose a national security risk. Examples include individuals suspected of engaging or having involvement with terrorism and espionage.
• People who entered through the border on or after November 1, 2020.
• Individuals posing public safety risk and who fall within one of the following three categories:
  • Have been convicted of an “aggravated felony” as defined by immigration law.
  • Have been convicted of an offense for which an element was involvement in a street gang
  • Intentionally have participated in an organized gang or transnational criminal organization and are at least 16 years old (no conviction necessary).

If an individual does not fall within these categories, ICE officers must obtain pre-approval from a direct or special agent before arresting and detaining a foreign national. The memo also requires weekly reports of enforcement actions be made available to DHS Secretary Alejandro Mayorkas. The memorandum will remain in effect until Secretary Mayorkas issues guidelines after consulting with the leadership in sub-agencies, including ICE and CBP; that guidance is anticipated within 90 days.

While the memo is a drastic improvement from the Trump Administration’s enforcement operations, which included arresting anyone “charged with any criminal offense where the charge was not resolved,” and contained a catch-all provision that allowed for ICE officers to arrest anyone in their judgment posing a risk to public safety, immigration advocates and activists have quickly pointed out where the new guidance misses the mark. Specifically, by prioritizing recent border entrants as enforcement priorities and security risks, it undermines obligations to provide safe refuge to individuals seeking asylum. The memo also leaves opportunity for marginalized groups who are inaccurately suspected of terrorism or gang violence to be apprehended.

Furthermore, the memo does not address any of the larger systemic challenges of immigration enforcement. While the Biden Administration has indicated it wishes to end contracts with private companies for federal criminal detention, it has not done so for individuals being held for civil immigration offenses. Moreover, despite the pandemic, an appalling 14,000 people remain in ICE custody, and often receive inadequate care and protection because of the negligent practices of the ICE detention facilities. Additionally, even though there is a backlog of over one million cases in immigration court, no guidance has been issued as to how ICE trial attorneys should exercise prosecutorial discretion. The lack of prosecutorial discretional, which has been nonexistent for four years, is a significant contributing factor to the immigration court backlog.

Without drastic reform, ICE, which has been polled by the public as the most unfavorable agency, will continue to face scrutiny and distrust. The often draconian actions of its officers and lack of transparency and accountability plague the agency that many immigration activists wish to see disbanded. Through the agency’s ongoing Secure Communities program, the distrust for ICE has permeated police departments, as many police officers remain deputized through “287(g)” agreements to make immigration arrests, furthering the wedge between law enforcement and the communities they protect. Enforcement of our immigration laws is important to preserving our national sovereignty and protecting the public, but it must be done in a humane and well-reasoned manner. While the incremental changes of the Biden Administration represent improvement, much more is needed to rectify a perennially flawed agency filled with poor policy.