Biden administration rolls out new rules placing stricter enforcement parameters on ICE

US Immigration and Customs Enforcement is rolling out new guidelines that would curtail enforcement measures, focusing more narrowly on immigrants who pose a national security, border security or public safety risk, the agency announced Thursday.

The new guidance was prompted by an executive order signed by President Joe Biden shortly after taking office and marks a return to Obama-era immigration enforcement measures based on a priority system instead of the more aggressive approach taken under the Trump administration.

The guidelines establishes strict parameters for ICE officers, particularly in the event that an undocumented immigrant is encountered who’s not being targeted, and appears intended to restrain an agency emboldened under the last administration.

“The approval to carry out an enforcement action against a particular noncitizen will not authorize enforcement actions against other noncitizens encountered during an operation if those noncitizens fall outside the presumption criteria identified above,” according to the guidance, previously reported by CNN.

The memo also directs field offices to coordinate their operations and obtain pre-approval for enforcement and removal actions that don’t meet the criteria of priority cases. Johnson said doing so would help “better coordinate our efforts, achieve consistency in our operations, and inform the development of the Secretary’s new enforcement guidelines.”

Priorities are broken into three groups: national security, border security and public safety.

The national security category includes individuals who, for example, have engaged in or are suspected to be engaged in terrorism or terrorism-related activities or espionage, according to the memo.

The second priority group focuses on border security and includes people apprehended at the border or port of entry on or after November 1, 2020.

The public safety category, meanwhile, applies to those convicted of an aggravated felony or convicted of an offense that includes active participation in a criminal street gang or a transnational criminal organization, a term often used to describe drug cartels.

When evaluating whether a noncitizen poses a threat to public safety, the memo continues, “officers and agents are to consider the extensiveness, seriousness, and recency of the criminal activity.” That also includes considering personal and family circumstances, health and medical factors and ties to the community, among other factors.

To that end, the memo generally advises that officers take into account an individual’s situation, including, for example, whether they are reopening removal proceedings.

“These are pretty common sense priorities,” said John Sandweg, former acting ICE director under the Obama administration. “It’s going to force the agency to do a better job of going after the worst offenders first.”

The memo also directs ICE to communicate to state and local authorities about enforcement operations. “The execution of an at-large enforcement action should be preceded by notification to the relevant state and local law enforcement agency or agencies,” according to the guidelines.

“This notification will advance public safety and help ensure that planned immigration enforcement actions are coordinated with any state and local law enforcement investigations and actions,” it continues.

“By focusing our limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission,” said ICE Acting Director Tae Johnson in a statement. “Like every law enforcement agency at the local, state, and federal level, we must prioritize our efforts to achieve the greatest security and safety impact.”

Language change

The terminology used throughout the guidance is also notable, referring to undocumented immigrants as “noncitzens,” instead of “aliens.” US code currently defines “alien” as “any person not a citizen or national of the United States.” But Biden is trying to move away from that term, which has long been decried as a dehumanizing slur by immigrant rights advocates.

Biden’s immigration bill, set to be introduced Thursday, proposes removing the word “alien” from US immigration laws, replacing it with the term “noncitizen.”

Homeland Security Secretary Alejandro Mayorkas will issue new guidelines after consulting with leadership in the foreseeable future, ICE said. In the interim, ICE leadership will provide weekly reports identifying enforcement actions, providing justification for the action and identifying the date, time and location of the action.

“The administration’s new enforcement priorities will impact a greater number of people than the initial priorities announced on inauguration day. But they still represent an extraordinary shift from the Trump administration and even those implemented under President Obama,” said Jorge Loweree, policy director at the American Immigration Council.

The administration’s new enforcement guidance is likely to face pushback. The administration has already faced a legal setback in its plan to pause deportations for 100 days.

The moratorium covered most deportations but excluded individuals who came to the US after November 1, are suspected of terrorism or espionage or pose a danger to national security, have waived rights to remain in the US or who’ve been determined removable by the acting director of ICE.

The move was immediately met with a lawsuit by Texas Attorney General Ken Paxton, who argued in part that a pause could harm the state. The moratorium has since been temporarily blocked by a federal judge in Texas.