On February 18, 2021, the acting director of Immigration and Customs Enforcement (ICE) issued a new memorandum detailing ICE’s priorities for enforcement and removal actions. The new priorities represent a huge departure from the enforcement actions of the previous administration.

During the previous administration, virtually any non-citizen present in the United States without valid immigration status was considered a priority for enforcement. As such, ICE agents were free to arrest, detain, and remove nearly any non-citizen, without consideration of any factors beyond the person’s status in the United States.

The Biden administration’s enforcement priorities reflect the reality that enforcement resources are not infinite, and that the United States as a whole is better off when law enforcement is targeted and able to account for different factors presented by each case.

Cases Presumed to be Enforcement Priorities

An individual who falls into one of the following categories is a presumed enforcement priority:

1. National Security

any noncitizen who has committed or is suspected of terrorism or espionage acts or who poses a threat to the United States’ sovereignty, territorial integrity, national interests or institutions

2. Border Security

any noncitizen who was not physically present on or before November 1, 2020 or who was apprehended while trying to enter unlawfully on or after November 1, 2020.

3. Public Safety

  1. anyone convicted of an aggravated felony
  2. anyone who has a conviction for gang activity or who is older than sixteen and intentionally participated in an organized criminal gang or organization

A case that is a “presumed enforcement priority” means that ICE officers and agents do not need to seek and obtain pre-approval from a supervisor to carry out enforcement or removal actions. However, where an individual does not fall into one of these categories there is no presumed enforcement priority, and an officer or agent must get preapproval from the Field Office Director or Special Agent in Charge to carry out any enforcement or removal actions.

Even where the case meets the definition of an enforcement priority, officers and agents are to take into account the recency and seriousness of any underlying criminal matters. ICE agents are further instructed to consider any and all mitigating factors, such as:

  • personal and family circumstances
  • health and medical circumstances
  • community ties
  • rehabilitation
  • potential for immigration relief

Further, ICE agents must provide a compelling reason to execute removal orders in cases of noncitizens who:

  • are elderly
  • are suffering from severe physical or medical illness
  • have petitions for review or appeals of a removal order pending, or
  • have only filed one motion to reopen

Cases Not Presumed to be Priority Cases

If an individual does not fall into one of the priorities above (national security, border security or public safety), the agent must get approval from the Field Office Director or the Special Agent in Charge to carry out removal or enforcement actions in that case. An agent who seeks to carry out an enforcement or removal action against a non-priority case has to request approval from a supervisor in writing, justifying the use of ICE’s limited resources in that particular case.

Importantly, approval for an enforcement action will only apply in that particular case. If ICE agents or officers encounter any other noncitizens during an enforcement operation, they must get specific and separate approval to carry out an enforcement action against anyone else. This is a big change from practices of recent years where ICE would commonly detain the target of an enforcement action as well as anyone else they came across in the process. Under the new administration’s guidance, this kind of collateral enforcement action is no longer permitted.

If an officer or agent believes that there is an emergency that makes preapproval impracticable against a non-priority case, the officer or agent has 24 hours after the enforcement action to request approval in writing from a supervisor. It is clear that enforcement without preapproval is justified in extremely limited circumstances, typically where the noncitizen poses an imminent threat to life or property.

Finally, officers are required to disclose whether enforcement is going to take place at a courthouse or other sensitive location (such as a school, church, hospital or public demonstration) and are required to notify local law enforcement of any plans for an “at-large enforcement action” such as ICE raids.

The new priorities relate to all aspects of ICE’s immigration enforcement authority, including:

  • Deciding whether to issue a detainer or act on a previously issued detainer
  • Deciding whether to issue, reissue, serve, file or cancel a Notice to Appear to Immigration Court
  • Focusing resources on administrative violations or conduct
  • Stopping, questioning or arresting a noncitizen for an administrative violation of civil immigration laws
  • Deciding whether to detain or release a noncitizen from ICE custody
  • Granting deferred action or parole; and
  • Executing final orders of removal

As always, EN Lawyers will continue to monitor any and all changes in the immigration laws that could impact our current and potential clients. Please check our website regularly for updates.

Call us anytime to schedule a consultation to discuss your immigration case in detail.