On February 18, 2021 – U.S. Immigration and Customs Enforcement (ICE) implemented an interim operating guidance that will temporarily govern its civil immigration enforcement and removal operations, until Secretary of Homeland Security Alejandro Mayorkas issues new enforcement guidelines for the Department. Secretary Mayorkas is expected to issue new enforcement guidelines in less than 90 days, after consultation with Department personnel and external stakeholders.
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 guidance defines which cases are presumed to present such threats and do not require prior approval. The guidance also sets forth a pre-approval process for any civil immigration enforcement action that does not meet the presumption criteria. In addition, the guidance sets forth weekly reporting requirements to ensure coordination and consistency and to inform the development of the Secretary’s final enforcement guidelines.
Individuals are presumed to be a border security enforcement priority if they are apprehended while attempting to unlawfully enter the United States on or after November 1, 2020, or if they were not physically present in the United States before November 1, 2020.
And, individuals are presumed to be a threat to public safety if, for example, they have been convicted of an aggravated felony or engaged in certain activity as part of a criminal gang or transnational criminal organization and there is reason to believe they currently pose a threat. In evaluating whether an individual poses a threat to public safety, officers and agents are to consider the extensiveness, seriousness and recency of any criminal activity, as well as mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, and evidence of rehabilitation. ICE’s prioritization of individuals with aggravated felony convictions is consistent with Congressional intent in creating that distinct category of offenses.
Absent exigent circumstances, ICE’s field personnel will need to obtain prior approval from their chain of command before pursuing cases that do not meet the presumption criteria.