Administration releases long-awaited ICE enforcement guidelines—10-01-21

Immigration news, in context

This is the ninety-seventh edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we analyze the Biden administration’s new immigration enforcement priorities.

• In Under the Radar, we discuss the recent expulsion flights to Haiti.

The Big Picture

The news:  The Biden administration announced on its first day that it would be revisiting the criteria utilized by ICE when making enforcement decisions. This week,  Homeland Security Secretary Ali Mayorkas released the long-awaited priorities in a memo to departmental staff. While the priorities as such will be broadly familiar to anyone who read the interim priorities and the priorities towards the end of the Obama administration, this memo goes all in on one particular facet of the enforcement calculus: agent discretion.

What’s happening?

We’ve discussed the idea of discretion at length before, highlighting its crucial role in the enactment of the country’s immigration laws. Discretion isn’t exactly a novelty in federal policy making: every single federal department has regulations that build on the comparatively general and sparse U.S. Code, and then departmental policies and guidelines that build on the regulations. Congress can’t legislate everything to anywhere near the degree of specificity that it takes to actually run federal systems, and there is a longstanding legal principle of trusting agency officials to use their expertise and knowledge to figure out exactly how to apply the laws as written (perhaps most notably laid out in the so-called Chevron doctrine).

In the immigration enforcement context, there are two main buckets of discretionary decision-making. These priorities deal mainly—though not exclusively—with the first bucket, which is the actual targeting, arrest, and initiation of removal proceedings against people for immigration violations. These actions are the responsibility of ICE field offices and agents in the Enforcement and Removal Operations section of the agency. This is what most people think of when considering ICE actions: agents out in the field, conducting raids and targeted arrests (Customs and Border Protection also does this, though these new guidelines are issued to and geared towards ICE).

The other bucket is around prosecution, as ICE prosecutors (under the Office of the Principal Legal Advisor) decide whether to pursue removal against particular people, the extent to which to argue against applications for relief, whether to pursue appeals to successful cases, etc. The Biden administration has separately instructed prosecutorial staff to exercise discretion to stop bringing cases against, for example, longtime residents with no criminal convictions, though subsequent reporting has shown that managerial and line staff in the agency often ignored such directives.

That is precisely the reason that immigration attorneys and advocates have been wary of the new guidelines. While the guidelines re-establish longtime and relatively standard priorities for targeting and detention—these being threat to national security, threat to public safety, and threat to border security (more on this below)—they heavily emphasize agents’ ability to make individual determinations around enforcement decisions. One section begins by noting explicitly that the “civil immigration enforcement guidance does not compel an action to be taken or not taken.”

Instead, it’s meant to direct agents to weigh a variety of factors in each case, and avoid making decisions based solely on one; for example, an individual who had committed a crime would not automatically be a target for arrest, by the same token that one who had no criminal record would automatically not be. Boiled down to its most basic form, this looks like a simple formula:

• Prioritization tier + (aggravating factors - mitigating factors) = enforcement determination

Where the tier can be 1, 2, or 3 (with national security threats determined to be the highest); aggravating factors could include having been the subject of a criminal investigation; and mitigating factors could include having been a longtime resident. The guidance also explicitly includes some potential factors and restrictions that agents could take into account, including the directive that “A noncitizen’s exercise of their First Amendment rights should never be a factor in deciding to take enforcement action,” a nod to criticisms that the agency has previously targeted activists and organizers. It also specifically alludes to the phenomenon of employers and landlords attempting to utilize immigration status as a weapon to underpay, prevent organization, and curtail tenants’ rights, stating that agents “must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices.”

While these latter points certainly are a welcome addition to the enforcement lexicon, the trouble is that it is still ultimately up to ICE agents to make the determination, and it is their responsibility to allot weight and significance to different factors. This is, obviously, a bit of a dicey proposition if the ultimate goal is to have a system that emphasizes fairness. The point about First Amendment protection wasn’t added out of the blue, it is in direct response to evidence that ICE field offices have cavalierly violated the Constitution by bringing enforcement action against people who were protesting its policies. It is these same people who are now entrusted with ensuring that their enforcement actions are optimized for equal treatment and due discretion.

The guidance itself certainly doesn’t lay out any additional oversight mechanisms or consequences for personnel who aren’t complying in good faith. It limits itself to establishing training, collecting data, and instituting a review process that will “seek to achieve quality and consistency in decision-making across the entire agency and the Department.” That’s all well and good, but anyone who has covered ICE knows that the implementation of policy can vary wildly even between different field offices, and most agents are fully aware that they don’t have to change a single thing about their conduct when there are no consequences for failing to do so.

How we got here

There’s this idea in the popular imagination that immigration proceedings are basically the same as criminal proceedings: someone commits a crime (in this case, entering the U.S. unlawfully) or overstays a visa, they get caught by the authorities, and then face a consequence (e.g., deportation) if they’re “guilty.” But immigration enforcement is highly discretionary, and the types of “offenses” that make a noncitizen deportable—or a priority for deportation—have ebbed and flowed over time.

Much of our current immigration enforcement system originated with the 1996 Illegal Immigration and Immigrant Responsibility Act (IIRIRA). That law, signed by Bill Clinton, significantly expanded enforcement priorities by lengthening the list of crimes that make noncitizens subject to deportation. Together IIRIRA and another 1996 law, the Antiterrorism and Effective Death Penalty Act, expanded the list of “aggravated felonies”: certain crimes that are grounds for deportation. Not all aggravated felonies are actually felonies. Murder, rape, and sexual abuse of minors are all aggravated felonies, but so are “failure to appear for service for a sentence, if the underlying offense is punishable by imprisonment of at least five years” and “any crime of theft (including the receipt of stolen property) or burglary for which the term of imprisonment is at least one year.” And even noncitizens who are charged with but not convicted of certain crimes can be flagged for deportation due to their criminal records.

The 1996 bill established 287(g), a partnership between federal immigration authorities and local law enforcement agencies that essentially turned local cops and sheriffs deputies into the INS’s boots on the ground. There were several 287(g) models: a jail enforcement model, in which everyone booked into a local jail would be asked about their immigration status; a task force model, in which officers would ask people they encounter during non-immigration related operations about their status; and the hybrid model, a mix of both. (The Obama administration discontinued the task force model after complaints over civil rights abuses and racial profiling.)

IIRIRA also created a new type of enforcement: expedited removal. For the first time, anyone apprehended within 100 air miles of the border could be quickly deported without due process. (For a more in-depth explanation of expedited removal, we suggest reading our July 30 edition of the newsletter, which delves into its history and the Biden administration’s recent decision to apply it to migrant families.) 

As Dara Lind wrote for Vox, IIRIRA made more people deportable while simultaneously making it harder for undocumented immigrants to become “legal.” People who would have otherwise not been priorities for deportation or may not have been deportable at all, many of whom were visa holders or legal permanent residents, suddenly had targets on their backs overnight.

Every subsequent administration has had its own enforcement priorities. After 9/11, the Bush administration tied immigration enforcement to national security. Congress dissolved the Immigration and Naturalization Service in 2003, transferring its duties to agencies within the newly established Department of Homeland Security. The Bush administration expanded 287(g) and made headlines for conducting mass workplace raids that resulted in arrests of thousands of undocumented immigrants. Bush also created Secure Communities, a program that runs the biometric data of anyone booked into a local jail through federal immigration and criminal databases.

The number of deportations doubled between 2001 and 2011, partly due to the Bush and Obama administrations’ increased funding for border security, as well as an increased emphasis on deporting those with criminal charges and convictions. 

In 2010, ICE deputy assistant secretary issued a memo detailing the Obama administration’s enforcement priorities. The memo said ICE should focus its “limited enforcement resources” on:

• people who pose a national security or public safety threat (including people “engaged in or suspected of terrorism or espionage,” people convicted of certain crimes or subject to outstanding criminal warrants, and people convicted of aggravated felonies)

• people who had recently entered the U.S. without authorization

• and people who “are fugitives or otherwise obstruct immigration controls,” including those who had already been ordered deported and those who “obtain admission or status by visa, identification, or immigration benefit fraud.” 

The Obama administration rolled out a new prioritization scheme in 2014. In a now-infamous speech, Obama said ICE would focus on deporting “felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.” Immigration advocates criticized the administration for creating a binary between “good” immigrants with no criminal records and “bad” immigrants. Critics noted that having been charged with or convicted of certain crimes at any point could trigger an immigration arrest. A 2014 DHS memo issued to outline this enforcement strategy clarified who ICE would prioritize for deportation:

• people who posed a threat to national security, border security, and public safety; 

• anyone convicted of three or more misdemeanors (aside from minor traffic violations and a few other exceptions); one “significant misdemeanor,” such as domestic violence, sexual abuse, burglary, unlawful possession of a firearm, drug distribution or drug trafficking, or driving under the influence; 

• anyone who entered the U.S. after January 1, 2014; 

• and those who have “significantly abused the visa or visa waiver programs” anyone who had already been issued a deportation order on or after January 1, 2014, aside from those who qualify for asylum or another form of relief.

The 2014 memo also said prosecutorial discretion should apply to a “broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.” DHS personnel, the memo said, “are expected to exercise discretion and pursue these priorities at all stages of the enforcement process—from the earliest investigative stage to enforcing final orders of removal—subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.”

The Obama administration ended Secure Communities in 2014, replacing it with the Priority Enforcement Program (PEP). Under PEP, ICE modified its detainer forms, documents asking local jails or prisons to hold non-citizens for an additional 48 hours after they’re supposed to be released, so ICE can pick them up and transfer them into federal immigration custody. There were several modifications made to the detainer process, all with the intention of making detainers less broad in the wake of legal challenges in which immigrants claimed that detainers violated their civil rights. A 2016 report by TRAC found that ICE’s use of detainers stabilized after PEP’s implementation. Although PEP was intended to reflect Obama’s “felons, not families” promise and uphold the new enforcement priorities, immigration advocates and civil rights groups still contended that its scope was too broad.

A 2016 analysis by the Marshall Project found that around 60 percent of the more than 300,000 deportations since the 2014 memo went into effect involved noncitizens whose only conviction was immigration-related or who had no criminal conviction whatsoever, and that less than 20 percent of those deported had “potentially violent convictions.”

Unsurprisingly, the Trump administration drastically expanded enforcement priorities. Under Trump, ICE’s Enforcement and Removal officers were instructed to arrest “all removable aliens” encountered in the field. A February 2017 DHS memo outlining the Trump administration’s enforcement priorities stated that DHS would “no longer exempt classes or categories of removable aliens from potential enforcement.” That same memo also limited the use of prosecutorial discretion, which it said “shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.” 

A 2018 analysis by the American Immigration Council found that the Trump administration’s new enforcement priorities led to more arrests and more deportations. The Trump administration also limited discretion at the adjudicative level. In 2018, then-Attorney General Jeff Sessions issued a decision ending immigration judges’ ability to administratively close cases. The end of administrative closure meant immigration judges could no longer temporarily close cases, and it significantly contributed to the immigration courts’ growing backlog. 

What’s next?

One of the big questions whenever a new federal immigration policy is released is: who is going to sue, and over what? In this case, the likeliest litigant is probably Texas Attorney General Ken Paxton, who’s made it a habit and electoral strategy to bring suit over almost any Biden administration effort to institute a slightly more humane system (often with the assistance of Stephen Miller’s new legal group). Paxton already succeeded in having a federal judge enjoin parts of the administration’s early interim enforcement guidelines that had to do with mandatory detention.

Lawsuits against these policies might be a little difficult in the sense that the Biden administration is not really creating any new program or establishing any fundamentally new principle, Sure, the policies go all-in on agent discretion, but that’s not really anything novel. Discretion is a baked-in part of the enforcement model, and unlike that earlier interim guidance, there’s no attempt here to establish absolute categories concerning enforcement, detention, or deportation targets. To establish standing, the plaintiffs would have to show some sort of harm they were being done, and that seems very difficult to argue here, as does any claim that these lukewarm policies violate statutory functions.

More generally, what exactly this guidance will mean in practice in the longer-term is very much up in the air. As we’ve said, whether it will change anything about how enforcement is conducted depends largely on the extent to which agents view it as a reason to meaningfully modify their own calculus around who to go after. Field office directors are probably the officials who will have the biggest say in whether there is any amount of practical shift as a result of the policies.

One more concrete result is that the guidance can be used as evidence if and when ICE faces accusation that it is again targeting advocates or going after employees or tenants who are attempting to assert their rights. Having those things explicitly discouraged in the guidelines will make it much easier for those groups to challenge enforcement conducted against them on those grounds.

Under the Radar

Biden expels more than 6,100 Haitians in less than two weeks

The Biden administration has expelled 6,131 Haitian migrants over the last 12 days, CBS News’s Camilo Montoya-Galvez reports. There have been 57 expulsion flights to Haiti in less than two weeks, seven of which landed on September 30.

Last week, the administration promised that Border Patrol agents would no longer use horses to prevent migrants from crossing into the U.S. after mass outcry over images of mounted Border Patrol agents running down Haitian asylum seekers in Del Rio, Texas. The administration, however, has made no indications that it would end the policy preventing Haitians and other migrants from accessing asylum at the border in the first place: Title 42. We’ve covered Title 42 in depth numerous times (most recently as part of our September 24 edition on the Haitian migrants in Del Rio), but as a reminder, it’s an ostensible public health policy that allows immigration authorities to deny entry to anyone whose presence might contribute to the “introduction, transmission, or spread” of a communicable disease in the U.S. 

The Trump administration implemented Title 42 in March 2020 despite public health officials’ warnings that it was useless from a public health perspective. The Biden administration reportedly planned on introducing a phased end to Title 42 on July 31 of this year, but instead extended the policy, doubling down on expulsions. Under Title 42, some migrants are expelled to Mexico—but the Biden administration is increasingly expelling Haitian migrants back to Haiti. 

Though there’s been a lot of conflation of “expulsions” and “deportations,” the two are legally distinct. Deportations leave a record: someone who has been deported from the U.S. is barred from returning for at least three years. Expulsions, meanwhile, leave no record; a migrant who is expelled to Mexico may try to cross again and again, which is why the administration has resumed flights directly to Haiti. Moreover, unlike deportations, expulsions happen without any semblance of due process. Migrants who are expelled to Haiti or elsewhere have no chance to argue their asylum case before an immigration judge.