New Interim Guidance from ICE on Removal Priorities

Today, ICE issued new guidance on civil enforcement priorities.

The memo notes, as a “preliminary matter,” the importance of discretion: “officers and agents are expected to exercise their discretion thoughtfully, consistent with ICE’s important national security, border security, and public safety mission. Enforcement and removal actions that meet the criteria described below are presumed to be a justified allocation of ICE’s limited resources. Actions not reflected in the criteria described below may also be justified, but they are subject to advance review as outlined further below.” (See p. 3).

The memo identifies three categories for removal priority: (1) national security, (2) border security (unlawful entry after 11/1/2020), and (3) public safety (ag fel immediately qualifies). (See p. 4).

The memo includes the following revisions to prior guidelines: “(1) authorization to apprehend presumed priority noncitizens in at-large enforcement actions without advance approval; (2) the inclusion of current qualifying members of criminal gangs and transnational criminal organizations as presumed enforcement priorities; (3) authorization to apprehend without prior approval other presumed priority noncitizens who are encountered during enforcement operations; (4) how to evaluate whether a noncitizen who is not a presumed priority nevertheless poses a public safety threat and should be apprehended; (5) the further delegation of approval authority; and (6) the importance of providing advance notice of at-large enforcement actions to state and local law enforcement.” (See p. 1-2).

The new priorities and the changes to prior guidance apply to:

• Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;
• Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear;
• Deciding whether to focus resources only on administrative violations or conduct;
• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;
• Deciding whether to detain or release from custody subject to conditions;
• Deciding whether to grant deferred action or parole; and
• Deciding when and under what circumstances to execute final orders of removal.

(See p. 3).

-KitJ