(Trends Wide) — The Department of Homeland Security (DHS) released guidelines on who should be prioritized for immigration enforcement on Thursday, following a set of interim guidelines published early in the Biden administration.
DHS is reverting to Obama-era immigration enforcement measures, based on a priority system rather than the more aggressive approach taken under the Trump administration. That approach, argues Homeland Security Secretary Alejandro Mayorkas, takes into account the department’s limited resources and the fact that a “removable non-citizen should not alone be the basis for a law enforcement action against them.” .
Mayorkas promised to publish guidelines after assuming the department’s leadership. Like the guidelines released in February, those of this Thursday focus on national security, public safety and border security, but place greater emphasis on the discretion of agents.
The department will prioritize certain undocumented immigrants for detention and deportation, including those suspected of terrorism, someone with serious criminal behavior, or people who have recently crossed the border illegally.
“These guidelines do not take a categorical approach. They require an individualized determination in each case. You have to evaluate the individual, investigate the facts, understand the totality of the facts and circumstances and then determine if the individual represents a threat to public safety. “Mayorkas told reporters on Thursday.
A “specific” approach
In the memo issued Thursday, Mayorkas writes that there are an estimated 11 million undocumented people in the United States. “We do not have the resources to detain and expel every one of these non-citizens,” he wrote to the acting director of the Immigration and Customs Enforcement Service, Tae Johnson.
In exercising discretion for immigrant arrests and deportations, Mayorkas says the department is guided by the fact that the majority of undocumented immigrants in the US have been “contributing members of communities for years,” including to the people on the front lines of the fight against covid-19.
The new guidelines advocate a “specific” approach to immigration law enforcement.
For example, an undocumented immigrant suspected of terrorism or espionage is a priority for arrest and removal, according to the memo. Like someone posing a “current threat to public safety, usually due to serious criminal conduct.”
The memorandum recognizes that threats to public safety will not be determined by “clear lines or categories”, but requires an assessment of the individual and the totality of the circumstances.
Aggravating factors can be a serious criminal record or the use of a weapon. For their part, mitigating factors may be age, mental health, or a long stay in the United States.
What is considered a threat?
An undocumented immigrant is considered a “threat to border security” if stopped at the border or at a port of entry trying to enter the United States illegally. Also if you are detained within the United States after entering illegally after November 2020.
The new guidance goes into effect in 60 days, on November 29, 2021, and supersedes the interim guidance published in the early hours of the Biden administration.
The Trump administration expanded the scope of the detentions, eliminating targeted enforcement and repeatedly promising that anyone who violates immigration laws can be subject to arrest, detention and deportation.
Legal challenges for immigration
But enforcement priorities are already in dispute. In September, a federal appeals court largely stalled a judge’s order blocking the administration’s enforcement priorities.
The case, brought by Texas and Louisiana, challenged a memorandum issued early in President Joe Biden’s term ordering the Immigration and Customs Enforcement Service to focus its arrests on certain undocumented immigrants, especially those who posed a national security risk or had serious criminal record.
The US Court of Appeals for the 5th Circuit found that the provisions do not eliminate the “broad discretion” of immigration officials to decide who should face enforcement actions, according to the ruling. The part of the court order that was not suspended already conforms to the general protocol for the application of the law.
“For these reasons, we do not see a strong justification for concluding that the detention statutes (from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) nullify the long-standing tradition of discretion in the application of the law when it deals with decisions that occur prior to arrest, such as who should be subject to arrest, detentions and removal proceedings, “says the ruling, written by Judge Gregg Costa.
“This means that the United States has demonstrated the likelihood of prevailing on appeal to the extent that the preliminary injunction prevents officials from relying on the memorandum enforcement priorities for non-detention decisions,” Costa added.
The panel consisted of two people appointed by Obama and one by George W. Bush.
With the 5th Circuit decision, the lower court order will be largely put on hold while the case is resolved on the merits, unless the red states get the full 5th Circuit or the US Supreme Court to intervene. .
(Trends Wide) — The Department of Homeland Security (DHS) released guidelines on who should be prioritized for immigration enforcement on Thursday, following a set of interim guidelines published early in the Biden administration.
DHS is reverting to Obama-era immigration enforcement measures, based on a priority system rather than the more aggressive approach taken under the Trump administration. That approach, argues Homeland Security Secretary Alejandro Mayorkas, takes into account the department’s limited resources and the fact that a “removable non-citizen should not alone be the basis for a law enforcement action against them.” .
Mayorkas promised to publish guidelines after assuming the department’s leadership. Like the guidelines released in February, those of this Thursday focus on national security, public safety and border security, but place greater emphasis on the discretion of agents.
The department will prioritize certain undocumented immigrants for detention and deportation, including those suspected of terrorism, someone with serious criminal behavior, or people who have recently crossed the border illegally.
“These guidelines do not take a categorical approach. They require an individualized determination in each case. You have to evaluate the individual, investigate the facts, understand the totality of the facts and circumstances and then determine if the individual represents a threat to public safety. “Mayorkas told reporters on Thursday.
A “specific” approach
In the memo issued Thursday, Mayorkas writes that there are an estimated 11 million undocumented people in the United States. “We do not have the resources to detain and expel every one of these non-citizens,” he wrote to the acting director of the Immigration and Customs Enforcement Service, Tae Johnson.
In exercising discretion for immigrant arrests and deportations, Mayorkas says the department is guided by the fact that the majority of undocumented immigrants in the US have been “contributing members of communities for years,” including to the people on the front lines of the fight against covid-19.
The new guidelines advocate a “specific” approach to immigration law enforcement.
For example, an undocumented immigrant suspected of terrorism or espionage is a priority for arrest and removal, according to the memo. Like someone posing a “current threat to public safety, usually due to serious criminal conduct.”
The memorandum recognizes that threats to public safety will not be determined by “clear lines or categories”, but requires an assessment of the individual and the totality of the circumstances.
Aggravating factors can be a serious criminal record or the use of a weapon. For their part, mitigating factors may be age, mental health, or a long stay in the United States.
What is considered a threat?
An undocumented immigrant is considered a “threat to border security” if stopped at the border or at a port of entry trying to enter the United States illegally. Also if you are detained within the United States after entering illegally after November 2020.
The new guidance goes into effect in 60 days, on November 29, 2021, and supersedes the interim guidance published in the early hours of the Biden administration.
The Trump administration expanded the scope of the detentions, eliminating targeted enforcement and repeatedly promising that anyone who violates immigration laws can be subject to arrest, detention and deportation.
Legal challenges for immigration
But enforcement priorities are already in dispute. In September, a federal appeals court largely stalled a judge’s order blocking the administration’s enforcement priorities.
The case, brought by Texas and Louisiana, challenged a memorandum issued early in President Joe Biden’s term ordering the Immigration and Customs Enforcement Service to focus its arrests on certain undocumented immigrants, especially those who posed a national security risk or had serious criminal record.
The US Court of Appeals for the 5th Circuit found that the provisions do not eliminate the “broad discretion” of immigration officials to decide who should face enforcement actions, according to the ruling. The part of the court order that was not suspended already conforms to the general protocol for the application of the law.
“For these reasons, we do not see a strong justification for concluding that the detention statutes (from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) nullify the long-standing tradition of discretion in the application of the law when it deals with decisions that occur prior to arrest, such as who should be subject to arrest, detentions and removal proceedings, “says the ruling, written by Judge Gregg Costa.
“This means that the United States has demonstrated the likelihood of prevailing on appeal to the extent that the preliminary injunction prevents officials from relying on the memorandum enforcement priorities for non-detention decisions,” Costa added.
The panel consisted of two people appointed by Obama and one by George W. Bush.
With the 5th Circuit decision, the lower court order will be largely put on hold while the case is resolved on the merits, unless the red states get the full 5th Circuit or the US Supreme Court to intervene. .