Guidelines focus on national security, public safety, and border security; emphasize prosecutorial discretion
WASHINGTON – Today, Secretary of Homeland Security Alejandro N. Mayorkas announced new Guidelines for the Enforcement of Civil Immigration Law to better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat. In the last six months, Secretary Mayorkas held multiple engagements with the U.S. Immigration and Customs Enforcement (ICE) workforce and leadership across the country, as well as with a range of stakeholders including law enforcement, civic, and community leaders to inform the new guidance.
“For the first time, our guidelines will, in the pursuit of public safety, require an assessment of the individual and take into account the totality of the facts and circumstances,” said Secretary Mayorkas. “In exercising this discretion, we are guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being, including those who have been on the frontline in the battle against COVID, lead congregations of faith, and teach our children. As we strive to provide them with a path to status, we will not work in conflict by spending resources seeking to remove those who do not pose a threat and, in fact, make our Nation stronger.”
Enforcement priorities for apprehension and removal remain focused on noncitizens who are a threat to our national security, public safety, and border security. But the guidelines are a break from a categorical approach to enforcement. They require an assessment of the individual and the totality of the facts and circumstances to ensure resources are focused most effectively on those who pose a threat.
There is also recognition that the majority of the more than 11 million undocumented or otherwise removable noncitizens in the United States have been contributing members of our communities across the country for years. The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them. The Department’s personnel are to use their discretion and focus the Department’s enforcement resources in a more targeted way.
“I am grateful to the ICE personnel for their candor and openness in our discussions about their critical law enforcement mission,” continued Mayorkas. “The new guidelines will enable our Department to most effectively accomplish our law enforcement mission and, at the same time, advance our country’s well-being by recognizing the invaluable contributions of millions of individuals who are part of the fabric of our communities. The guidelines will help us exercise our prosecutorial discretion to achieve justice.”
The immigration enforcement guidelines require the protection of civil rights and civil liberties. A noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, political associations, or exercise of First Amendment rights cannot be factors in deciding to take enforcement action. For the first time, they explicitly guard against the use of immigration enforcement as a tool of retaliation for a noncitizen’s assertion of legal rights, such as the right to exercise workplace or tenant rights. The guidelines make clear that immigration enforcement authority shall not be used as an instrument of unscrupulous employers seeking to exploit their employees’ immigration status.
Continuous training, a process to review their effective implementation, extensive data collection, and a case review process will all be required.
The new guidelines replace the interim priorities issued by ICE Acting Director Tae Johnson in February and become effective November 29, 2021. Secretary Mayorkas is expected to issue additional immigration-related policy memos in the coming weeks.