On September 30, U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas released immigration enforcement priorities that chart a new course for the agency, emphasizing the “exercise of prosecutorial discretion to achieve justice.”
The Guidelines for the Enforcement of Civil Immigration Law, which are slated to take effect on November 29, 2021, supersede interim enforcement priorities released by DHS in January 2021, as well as the subsequent supplemental interim guidance released by U.S. Immigration and Customs Enforcement (ICE) in February 2021.
The new guidelines represent a continuation of the interim priorities and guidance impacting apprehension and removal of noncitizens in that they focus civil immigration enforcement on “those who pose a threat to national security, public safety, and border security.” The guidelines explicitly state that the “fact that an individual is a removable noncitizen . . . should not alone be the basis of an enforcement action against them.”
In a departure from the previous interim enforcement priorities, the new guidelines make extensive use of prosecutorial discretion to seek targeted enforcement when carrying out DHS’s “enforcement mission most effectively and justly.” Rather than relying on rigid categories of offenses or prior convictions in determining whether someone is a threat to public safety, the enforcement priorities provide flexibility to DHS personnel, who are advised to balance aggravating and mitigating factors in making enforcement determinations.
Finally, the enforcement priorities include sections on the protection of civil rights and civil liberties of noncitizens, as well as anti-retaliation measures.
II. Enforcement Priorities Guidance
The Enforcement Priorities Guidance continues existing Biden administration policies on targeting enforcement against those who pose threats to national security, public safety, and border security. Each of these categories is defined as follows:
A. Priorities for Enforcement
1. Threats to National Security
The new guidelines define national security threats in the same general terms as the interim enforcement priorities from January 2021 – noncitizens who have “engaged in or are suspected of terrorism or espionage” or related activities, or who otherwise pose a danger to national security. As before, this category is designated as a priority for apprehension and removal.
2. Threats to Border Security
The new guidelines similarly retain the January 2021 interim enforcement priorities’ description of border security threats – recent entrants. According to the new enforcement priorities, they are defined as noncitizens apprehended at the border or a port of entry attempting to unlawfully enter the United States as well as those apprehended in the interior of the United States who have unlawfully entered after November 1, 2020.
3. Threats to Public Safety
The new enforcement priorities set out a new framework for determining what constitutes a threat to public safety. Previous enforcement priorities guidance categorized specific categories of offenses constituting public safety threats.
The Obama administration set out a hierarchy of offenses – aggravated felonies, other felonies, and then multiple or significant misdemeanors – that would elevate someone as a target for immigration enforcement. Defining the term much more broadly, the Trump administration categorized anyone convicted of, charged with, or otherwise engaging in conduct that could be seen as a crime, as a public safety threat deserving of enforcement. The Biden administration narrowed this category significantly in its January and February 2021 guidance, primarily focusing on aggravated felons and those convicted of gang-related violence.
The Biden administration’s new enforcement priorities guidance departs from any of these frameworks. Rather than specifying categories of criminal convictions, charges, or offenses, the new framework utilizes prosecutorial discretion in “require[ing] an assessment of the individual and the totality of the facts and circumstances.” Under this new framework, DHS personnel will receive training to carry out these individualized assessments, taking into account aggravating and mitigating factors that militate for or against carrying out an enforcement action against an individual.
a. Aggravating factors
Under the new guidance, the following list of aggravating factors favoring enforcement include (but are not limited to):
- gravity of the criminal offense, including consideration of criminal sentence,
- nature and degree of the harm caused by the conduct at issue,
- whether the criminal offense is sophisticated,
- offenses involving dangerous weapons (including firearms), or
- prior criminal record.
b. Mitigating factors
The new guidance also provides an extensive non-exhaustive list of mitigating factors that tend to disfavor enforcement activity:
- status as an elderly or youthful offender,
- having longstanding ties/ lengthy presence in the United States,
- possessing a mental or physical health condition requiring treatment and/or contributing to the criminal conduct occurring,
- status as a crime victim, witness, or party in an investigation or legal proceeding,
- service as a provider or caregiver, where potential removal will have a negative impact on remaining family members in United States,
- eligibility for immigration relief or humanitarian protection,
- public or military service by the individual or an immediate family member,
- passage of time since conviction and/or evidence of rehabilitation since offense was committed, or
- vacation or expungement of underlying offense.
Table: Defining Threats to Public Safety
B. Implementation of Priorities for Enforcement
The new guidance requires several actions to be taken prior to the November 29 effective date. First, DHS is required to conduct training of DHS personnel to properly carry out the individualized assessments. This effort is to include “[e]xtensive training materials and a continuous training program.”
The guidance also provides for a review process to evaluate the implementation of the new enforcement priorities, including evaluations after the initial 90 days along with “continuous” assessment of implementation over the long-term.
Supporting this review and evaluation process, the guidance calls for data collection to be carried out in conjunction with the offices of the Chief Information Officer; Strategy, Policy, and Plans; Science and Technology; Civil Rights and Civil Liberties; and Privacy. Such data is intended “both to ensure the quality and integrity of [DHS’s] work and to achieve accountability for it.”
Finally, the guidance calls for the creation of a “fair and equitable” case review process to obtain reconsideration of enforcement actions.
C. Protection of Rights
Unlike prior guidance, the new Biden administration enforcement priorities also include sections explicitly safeguarding the rights of impacted citizens and noncitizens. The new guidance states that DHS must exercise its authority in a manner that protects individuals’ civil rights and civil liberties, and that enforcement actions must never be “discriminatory” or “lead to inequitable outcomes.” The new guidance makes clear that “race, religion, gender, sexual orientation or gender identity, national origin, or political associations” shall never be factors in a determination to take enforcement action. Nor should the exercise of one’s First Amendment speech rights be a factor in such enforcement determinations.
The guidance also pledges to guard against the use of immigration enforcement to retaliate against noncitizens asserting legal rights. Noting that unscrupulous employers or landlords may threaten enforcement to exploit workers or tenants, the guidance states that an exercise of rights in these situations “should be considered a mitigating factor in the exercise of prosecutorial discretion.”
The new guidance is a worthy attempt to protect public safety and more effectively target immigration enforcement. While continuing to prioritize threats to national security and public safety, the guidance will allow DHS personnel significant flexibility while affirmatively protecting important rights held by citizens and noncitizens. While the success of this approach will hinge on the effectiveness of the training given to DHS personnel, the inclusion of data collection and program evaluation frameworks within the new guidance will serve as a valuable tool to correct shortcomings and improve processes.
What will be the impact of the new guidance? In many circumstances, the same types of threats as before will likely be subject to enforcement, such as individuals convicted of violent aggravated felonies. However, the new framework allows for additional reliance on prosecutorial discretion to better target true threats and obtain just outcomes. For example, the new guidance will provide DHS personnel with flexibility to use their discretion in helpful, commonsense manners. Under the framework, they can decline to carry out immigration enforcement against individuals with deep family and community ties in the U.S. when decades-old convictions come to light. On the other hand, this guidance would also allow DHS personnel to carry out enforcement against clear threats to community safety, including known gang members and drug traffickers who might otherwise slip through the cracks.
By increasing the reliance on prosecutorial discretion and individualized enforcement determination, the new DHS enforcement priorities are a promising attempt to protect public safety while achieving just outcomes.
Author: Laurence Benenson