On September 30, 2021, Secretary of Homeland Security Alejandro Mayorkas issued an important memorandum which provides guidance to U.S. Department of Homeland Security’s U.S. Immigration and Customs Enforcement (“DHS-ICE” or “ICE”) regarding the apprehension and removal of noncitizens. The memo updates a May memorandum on interim guidelines regarding the apprehension and removal of noncitizens. The update seemingly finalizes the Biden Administration’s stance regarding which noncitizens will be prioritized for arrest by immigration agents and set to be deported from the United States. The policies listed by the Sept. 30 memo do not go into effect until November 29, 2021. At a glance, it borrows much of the same policies from the May 27 memo. The three general enforcement priorities are: National Security – noncitizens suspected of terrorism or espionage, activities related to these acts, or any noncitizen “who otherwise poses a danger to national security.” Threat to Public Safety – noncitizens who pose “a current threat to public safety, typically because of serious criminal conduct.” Threat to Border Security – noncitizens apprehended trying to enter the United States unlawfully or people who “are apprehended in the United States after unlawfully entering after November 1, 2020.” Still, there is much confusion regarding what exactly constitutes an enforcement priority, and therefore, who exactly is an ICE priority for arrest and deportation. This article will try to break down the enforcement priority categories. Border Security The policy memorandum breaks down two general subcategories for border security-related deportation priorities. First, noncitizens apprehended at a border or port of entry while “attempting to unlawfully enter the United States.” We can safely assume that this includes individuals who try to enter the United States without inspection. However, the memo does not specify what exactly an unlawful attempt to enter is. The perfect example would be a border patrol officer who suspects (whether right or wrong) that a tourist visa holder is seeking to enter the United States to work or with the intentions of seeking permanent immigration status. The memo does not clarify the term “unlawfully” here. The second subcategory involves noncitizens “apprehended in the United States after unlawfully entering after November 1, 2020.” Again, the memo is unclear: will immigration officers prioritize deportations of noncitizens they apprehended after November 1, 2020, or will they prioritize noncitizens who entered the United States unlawfully after that date? We must wait to see how the DHS implements this language. Threats to Public Safety Unlike the interim guidelines, which required pre-approvals and authorization from supervising officers, DHS agents no longer need these pre-approvals and can theoretically implement the enforcement priorities without a second opinion. Aggravated felons and gang-related criminals are not included in the September memo, unlike the interim policy memo. However, we can assume the DHS will continue to target these individuals as they have in the past. The new policy guidelines grant the DHS complete discretion when determining who is and who is not a “public safety” threat. The DHS is not bound to any defined terms; they state that “public safety is not to be determined according to bright lines or categories.” Although the policy memo mentions certain aggravating and mitigating factors, the DHS can genuinely weigh any factor it wishes to do so in individualized cases. The September deportation policy memorandum may be the “final” word the Biden Administration has when it comes to enforcement priorities. DHS officers now have the ability to make their own decisions without the need for approval from supervisors. Ibrahim Law Office will continue to monitor the situation with respect to the apprehension and removal of noncitizens. If you or a loved one has any questions regarding a deportation matter, contact us today.
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Michael G. Ibrahim, Esq.
Founder & Principal Attorney — Ibrahim Law Office
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DePaul University College of Law
J.D., 2013
Certificate in Public Interest Law
University of Illinois at Urbana-Champaign
B.A. Political Science & International Studies, 2010
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Editor, Journal for Social Justice — DePaul University
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