New Immigration Enforcement Guidance Favors Case-by-Case Approach

Last Updated

October 28, 2021

Department of Homeland Security, or DHS, Secretary Alejandro N. Mayorkas issued immigration enforcement guidelines on Sept. 30, 2021. The guidance retains, with some changes in scope, the enforcement priorities previously articulated by the Biden administration of public safety, national security and border security. Rather than prescribe general categories of noncitizens who should be protected from enforcement, the guidance leaves it to individual officers’ discretion to make case-by-case determinations balancing aggravating and mitigating factors. The memo will go into effect on Nov. 29, 2021, and will then rescind interim DHS guidance issued on Jan. 20, 2021 and interim Immigration and Customs Enforcement, or ICE, guidance issued on Feb. 18, 2021. It is likely that DHS components such as ICE, ICE Office of the Principal Legal Advisor, or OPLA, and U.S. Citizenship and Immigration Services, or USCIS, will issue updated guidance in light of the Mayorkas memo.

Summary of Mayorkas Memo
The memo begins by acknowledging that the exercise of prosecutorial discretion is a “deep-rooted tradition” in the immigration field and is necessary given that DHS does not have the resources to pursue removal against the estimated 11 million undocumented noncitizens in the United States. The memo recognizes that many undocumented noncitizens have made meaningful contributions to their U.S. communities and states that “[t]he fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”

The guidance re-asserts as priorities for apprehension and removal those who threaten (1) national security, (2) public safety and (3) border security. The national security category, focusing on terrorism and espionage-related activities, is largely the same as it was previously defined in the January 2021 DHS guidance and the February 2021 ICE memo. However, the Mayorkas memo amends both the border security and public safety categories.

Whereas under the interim guidance the border security priority focused on individuals who unlawfully entered or attempted to enter the United States on or after Nov. 1, 2020, the new guidance prioritizes for enforcement (a) noncitizens who “are apprehended at the border or port of entry while attempting to unlawfully enter the United States,” and (b) noncitizens who “are apprehended in the United States after unlawfully entering after November 1, 2020.” While it is not certain what DHS’s intention was in making these modifications to the previous definition, it appears that category (a) applies to those who are apprehended at the border or port of entry on or after the memo’s Nov. 29, 2021 effective date, and that category (b) applies to those apprehended in the interior of the United States if they entered unlawfully after Nov. 1, 2020. The guidance acknowledges that there could be extenuating circumstances in each case militating against enforcement even if an individual falls within this category.

The new memo also significantly revises the public safety priority category. Whereas the previous ICE guidance had prioritized individuals who posed a threat to public safety and had either an aggravated felony conviction or certain gang history, the new guidance contains no bright line definitions for who falls within this priority. Instead, the memo leaves it to individual ICE officer discretion to assess the totality of the circumstances in each case to decide whether any particular noncitizen poses a “current threat to public safety.”

The guidance provides a non-exclusive list of aggravating factors that officers should consider in making individualized public safety determinations:

  • “the gravity of the offense of conviction and the sentence imposed; 
  • the nature and degree of harm caused by the criminal offense; 
  • the sophistication of the criminal offense; 
  • use or threatened use of a firearm or dangerous weapon; 
  • a serious prior criminal record.”

The memo also provides a non-exhaustive list of mitigating factors officers should consider when assessing whether an individual poses a public safety threat:

  • “advanced or tender age;
  • lengthy presence in the United States;
  • a mental condition that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment; 
  • status as a victim of crime or victim, witness, or party in legal proceedings; 
  • the impact of removal on family in the United States, such as loss of provider or caregiver;
  • whether the noncitizen may be eligible for humanitarian protection or other immigration relief;
  • military or other public service of the noncitizen or their immediate family; 
  • time since an offense and evidence of rehabilitation;
  • conviction was vacated or expunged.”

Importantly, the memo states that immigration officers “should not rely on the fact of conviction or the result of a database search alone” but should instead investigate and evaluate each case, reviewing where possible “the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue.”

The guidance also contains statements acknowledging civil rights and civil liberties. It states that a noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, political associations, or exercise of First Amendment rights “shall never be factors in deciding to take enforcement action.” It also states that “[a] noncitizen’s exercise of workplace or tenant rights, or service as a witness in a labor or housing dispute, should be considered a mitigating factor in the exercise of prosecutorial discretion.”

The guidance directs DHS to create “[e]xtensive training materials and a continuous training program,” an implementation review process, and data collection measures before the memo goes into effect on Nov. 29. The guidance also commits to establishing a “fair and equitable case review process to afford noncitizens and their representatives the opportunity to obtain expeditious review of the enforcement actions taken.” It is not clear how the new case review process will differ from the current ICE case review process

Implications and Unresolved Questions
Overall, the Mayorkas Memo favors a case-by-case approach to prosecutorial discretion that will be highly dependent on the individual immigration officer’s view of a noncitizen’s circumstances. This approach might benefit some noncitizens, such as those with aggravated felony convictions who might have been viewed as a priority under the previous guidance, but under the new guidance may be able to demonstrate that they do not fall within the public safety priority due to their individual circumstances. However, the new guidance may weaken constraints on individual officers who will now apparently have broad leeway to determine whether any particular noncitizen should be arrested, detained, or removed. And the prior Feb. 18 ICE guidance under which ICE officers needed to get pre-approval before taking enforcement action against non-priority individuals will be rescinded as of Nov. 29, when the Mayorkas Memo goes into effect, apparently permitting officers to take enforcement action against non-priority individuals without supervisor approval.

Ultimately, the effectiveness of the Mayorkas Memo in fulfilling its stated goal of “achiev[ing] justice and realiz[ing] our ideals as a Nation” through “enforce[ing] immigration law with honor and integrity,” will depend on the strength of its implementation. Detailed and clear implementing memos, strong training and review processes, and a robust case review mechanism could create a humane and just prosecutorial discretion framework. The memo’s language recognizing the dignity, contributions and civil rights of noncitizens regardless of their immigration status is certainly a change in rhetoric from the previous administration’s approach to immigration policy.