Immigrant advocates say there should be further limits on ICE agents.
Among President Joe Biden’s key campaign promises on immigration was to end Trump-era policies that threatened all undocumented immigrants with deportation and to identify new priorities for enforcement that protect families, workers, and longtime residents. New guidance issued Thursday is a step toward fulfilling that promise, but it still leaves individual immigration enforcement officers with significant decision-making power.
According to a memo from acting US Immigration and Customs Enforcement Director Tae Johnson, the agency will now prioritize people who pose a threat to national security or public safety for deportation, as well as recent arrivals. Specifically, that includes those who have engaged in terrorism or espionage or are suspected of doing so, people over the age of 16 who are members of criminal gangs and transnational criminal organizations, and people who arrived in the US after November 1, 2020. People who were apprehended while trying to cross the border without authorization at any point, even before November 1, are also being targeted.
The memo doesn’t make people with criminal records into automatic enforcement targets, but it does prioritize those convicted of certain offenses classified as “aggravated felonies” — which can include filing a false tax return or failing to appear in court. While those crimes might appear relatively minor, the Obama administration’s deportation guidance targeted people with just a single “significant misdemeanor.”
The memo represents a departure from Trump-era policies in which any immigrant — regardless of whether they had committed crimes or how long they had resided in the US — could have been targeted by ICE, sometimes in wide-scale raids. But it’s less clear whether the memo will allow the Biden administration to meaningfully advance from the Obama-era status quo on immigration enforcement, in which “felons, not families” were supposed to be deported as part of reforms that ICE largely ignored.
The memo does erect administrative barriers to mass deportations and oversight measures, including weekly reporting and a preapproval process for cases that fall outside the agency’s explicit priorities.
But ICE officers, who have reportedly complained that Biden’s policies have stripped them of their ability to enforce immigration laws, still wield significant power. What’s more, the 100-day pause on deportations that Biden enacted soon after assuming office as a means to “review and reset enforcement priorities” has been temporarily blocked in Texas federal court.
“The memo is a disappointing step backward from the Biden administration’s earlier commitments to fully break from the harmful deportation policies of both the Trump and Obama presidencies,” Naureen Shah, senior advocacy and policy counsel for the American Civil Liberties Union, said in a statement. “While the Biden administration rightly acknowledges that immigrants are our family members, our coworkers, and our neighbors, for now it has chosen to continue giving ICE officers significant discretion to conduct operations that harm our communities and tear families apart.”
The memo requires that officers consider a host of factors when making decisions about enforcement activities, such as taking people into immigration custody, releasing them, initiating deportation proceedings, or pursuing people who have already been ordered deported by an immigration judge.
Officers must weigh the “extensiveness, seriousness and recency” of any criminal activity, as well as mitigating factors that include “personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation and whether the individual has potential immigration relief available,” according to the memo.
Those are the kinds of individualized factors that immigration advocates have been pushing the immigration enforcement agencies to consider for years. It might mean that fewer families are separated and fewer longtime residents are deported — but it still gives ICE officers a broad mandate.
“Despite what some critics may claim, this memo does not block immigration enforcement, but rather makes very clear that ICE officers retain discretion and that no one is completely off limits from apprehension, detention, or removal,” Jennifer Minear, president of the American Immigration Lawyers Association, said in a statement.
ICE also has extensive resources with which to target its enforcement priorities. The agency’s budget has ballooned by about 40 percent since 2016 to roughly $8.4 billion.
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