New temporary guidelines on enforcement from ICE

US Immigration and Customs Enforcement announced new interim operating guidance to govern its civil enforcement priorities. According to the press release, “ICE’s interim guidance will focus the agency’s civil immigration enforcement and removal resources on threats to national security, border security and public safety.”

The revised enforcement guidance comes in the form of a memorandum dated February 18, 2021. That memorandum was made publicly available at the ICE website.

Immigration agencies have limited ability to enforce the laws, and this guidance sets priorities for those agencies to direct enforcement efforts. Previously, under the Trump Administration, enforcement priorities included virtually all individuals with any kind of immigration violation. This resulted in extreme backlogs in immigration courts and raids which failed to discriminate between dangerous criminals and individuals with only civil immigration violations.

The Biden Administration has reversed course. It not only proposed a broad amnesty-type bill that would legalize millions of people if enacted, but also has sought to curtail and refocus the efforts of immigration enforcement agencies.

The new guidance creates three categories which are automatically deemed to be priorities for enforcement and which need no prior approval: national security threats, unlawful border crossers, and those convicted of certain criminal offenses. Other immigrants, even if unlawfully present, are not automatically considered to be enforcement priorities and would presumably need supervisory approval.