WASHINGTON – The Biden administration on Thursday released new guidelines by which the arrest of undocumented immigrants should be prioritized, giving Immigration and Customs Enforcement agents wide discretion to decide who poses a threat to public safety and national security.
The priorities are meant to further undo the indiscriminate immigration arrest policies of the Trump administration, and instead guiding immigration officials to focus on each person rather than specific crime categories.
“The fact that an individual is a removable non-citizen should not be the sole reason for a legal action against him,” Alejandro N. Mayorkas, secretary of national security, said Thursday. “So we are requiring and, frankly, empowering our workforce – critically, empowering our workforce – to exercise its judgment, its law enforcement judgment.”
Such considerations include the severity of a past offense, what type of damage it caused, and whether a firearm was involved. Under the guidelines, officers must also consider “old or young age” as a mitigating factor. Other considerations include the effect that arresting and eventually deporting someone would have on the person’s family.
But some immigration advocates think the guidelines give agents too much discretion without a clear accountability plan.
The guidelines come when the Democrats seem to be losing a fight to include a path to citizenship for millions of unauthorized and temporarily authorized immigrants in a sprawling budget reconciliation bill. The new arrest priorities would largely exclude noncitizens to whom lawmakers hoped to extend permanent residence, including young adults who came to the country as children, as well as agricultural and health care workers.
There are 11 million non-citizens in the country, some with temporary authorization to live and work, but many without any documentation, and limited resources to enforce the law.
At the beginning of his administration, President Donald J. Trump rejected the prosecutorial discretion that his predecessor established over the application of immigration law and instead set out to arrest any non-citizen in the country without authorization, speed up deportations and recruit local law enforcement agencies more frequently to act as immigration agents. Trump’s first press secretary, Sean Spicer, said the president wanted to “remove the shackles” from Immigration and Customs Enforcement agents, which some agents at the time said was a welcome change.
Lena Graber, a senior attorney at the Immigrant Legal Resource Center, said she was concerned that the guidelines would give officers so much discretion that enforcement actions would not look much different from those of the Trump administration.
“It gives ICE field agents a lot of discretion to follow their own instincts and inclinations, with few real limitations,” Ms. Graber said. “This is an agency that runs a detention system where people are abused, neglected, sexually assaulted, involuntarily sterilized, denied medical treatment, and denigrated in countless ways. And now, whoever enters that system is entrusted to their personal judgment. “
The agency has faced many complaints for their treatment of detainees. Mr. Mayorkas said there will be training for officers regarding arrest guidelines and reviews.
The guidelines, which also prioritize arresting people who crossed the border illegally since November, follow months of meetings Mayorkas held across the country with ICE employees. “They are the ones who live in the communities and understand how things work, in practice, in reality,” Mayorkas said in a September interview with The New York Times.
“We have had very, very frank discussions, back and forth conversations,” he said. “They are not united.”
Thomas D. HomanTrump’s first acting ICE director said he spoke with ICE agents Thursday, who told him they were “disgusted.”
“They’re upset about it because they took an oath to enforce immigration law,” Homan said, “only for the secretary to say, ‘Well, it’s not going to enforce most of it.’
He added that the guidelines would further entice migrants to cross the border illegally, at a time when crossings are already at a 20-year high. Republicans have voiced similar concerns and pointed to a decline in the number of arrests since Biden took office.
“The Biden administration has welcomed the flood of illegal aliens crossing our border and now promises those same illegal aliens that they can remain in the United States without repercussions,” said Senator Tom Cotton, Republican of Arkansas, in a Twitter post Thursday.
Just as Republicans argue that the current border crisis cannot be overlooked in the wording of arrest priorities, immigration advocates say the recent Border Patrol, widely criticized answer to a large group of Haitian immigrants crossing the Texas border illegally highlights concerns about giving immigration officials more discretion in deciding who to turn to.
“There are many doubts” in the defense community, said Jacinta González, an organizer for Mijente, a grassroots group. Advocacy groups have been desperate for the direction in which the Biden administration is moving after Biden pledged to return humanity to the country’s immigration system, he said.
the memorandum posted Thursday replaces provisional orientation issued at the beginning of the Biden administration that has faced legal challenges. A federal judge in Texas issued a preliminary injunction blocking that earlier guidance in August, after Texas and Louisiana argued that the priorities excluded undocumented immigrants convicted of drugs and other serious crimes. But an appeals court stopped most of the injunction.
It was not immediately clear what effect the case might have on the new guidelines.
“The interim guidance provided clearer limits on what officers should and should not do, and a clearer process on how to apply them,” Ms. Graber said. “This new policy removes those limits.”
Ms. Graber said the new guidelines were so different in some respects from those challenged in court that she suggested the administration had the litigation in mind when drafting them. But Mayorkas said that was not the case.
“These guidelines will be evaluated on an ongoing basis,” he said Thursday. “We will learn from our performance of our responsibilities under these guidelines, and we will revise them if our lessons dictate.”
The new priorities will take effect in 60 days. And for the first 90 days they are in effect, enforcement decisions will be subject to “rigorous review,” according to the memo.