Notice & Comment

Prosecutorial Discretion in the Biden Administration: Part 2, by Shoba Sivaprasad Wadhia

On February 18, 2021, Tae D. Johnson, Acting Director of U.S. Immigration Customs Enforcement (ICE), issued interim guidance on civil immigration enforcement and removal priorities (ICE Priorities Memo).

Building on a previous commentary on prosecutorial discretion in the Biden administration, this post shares key elements of the ICE Priorities Memo, and compares it to how enforcement priorities have been drawn historically.

Enforcement priorities refer to the group of people a government identifies as the highest targets for removal. As the ICE Priorities Memo reaffirms “ICE operates in an environment of limited resources.” Because of these limited resources choices have to made about who to prioritize for enforcement and who to leave alone. These choices are known more broadly as prosecutorial discretion, a longstanding concept in immigration law.

The ICE Priorities Memo spells out the various ways prosecutorial discretion can be exercised during the immigration enforcement process. In addition to resource constraints which have long guided enforcement priorities, the ICE Priorities Memo includes additional factors that add to the complexity of ICE’s mission, including but not limited to health and safety of the ICE employees and immigration detainees during COVID-19; ensuring that noncitizens can pursue relief from removal; and ongoing litigation.

Elaborating on or revising on the DHS Memo from January 20, 2021, the ICE Priorities Memo lists three categories that are presumed priorities for enforcement. These categories bear some resemblance to how priorities were drawn during the Obama administration, while also raising similar concerns about overbreadth and implementation. Notable and different however are the mitigating factors listed with regard to public safety.

  1. National Security: The ICE Priorities Memo ties this to someone who has engaged in or is suspected of engaging in terrorism or espionage or related activities or in cases where enforcement action is “otherwise necessary to protect the national security of the United States.”
  2. Border Security: This category includes anyone arrested at the border or port of entry without authorization on or after November 1, 2020 or anyone who was not physically present in the United States before November 1, 2020.
  3. Public safety: This category includes anyone who was convicted of an “aggravated felony” as defined by immigration law or one who has been convicted of an offense that included the element of active participation in a criminal street gang. Incorporated in the public safety calculus are adverse factors such as the seriousness or recency of criminal activity as well as mitigating factors that include personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and the availability of potential of relief.

In a paragraph that appears to apply to all immigration cases, the ICE Priorities Memo includes humanitarian factors and related equities that should be given “particular attention” in the exercise of prosecutorial discretion: noncitizens who are elderly, suffering from a physical or mental illness, or with a pending application or motion. In these cases, “execution of removal orders should have a compelling reason” and have approval from a Field Office Director. This language aligns with the humanitarian dimension of prosecutorial discretion that has informed these decisions historically.

The ICE Priorities Memo includes explicit language that any civil enforcement actions that fall outside of the “presumed priority cases” will require preapproval from ICE leadership and consideration of the noncitizen’s criminal history and whether enforcement action is an appropriate use of ICE resources. Exceptions to the preapproval process include “exigent circumstances” that make preapproval impracticable. The memo also requires that the exigency should be explained the location of the enforcement action and whether the location is at a courthouse or in a “sensitive location.”

The ICE Priorities Memo also includes language that prohibits collateral arrests and enforcement action. Specifically, the memo states “The approval to carry out an enforcement action against a particular noncitizen will not authorize enforcement actions against other noncitizens encountered during an operation if those noncitizens fall outside of the presumption criteria.” This language is important to increase the possibility that ICE channels its limited resources to its actual priorities, as opposed to low hanging fruit.

Recognizing the importance of transparency and reporting, the ICE Enforcement Memo includes weekly reporting of all enforcement and removal actions including a written report that includes a justification for the enforcement action and location. The memo also requires that ICE collect data on the nature and type of enforcement actions performed. Having sought data on prosecutorial discretion and enforcement for many years, the steps I have taken to obtain this data has included multiple Freedom of Information Act (FOIA) requests, advocacy, and litigation. Improving transparency about immigration enforcement and discretion is long overdue and welcome.

The ICE Priorities Memo is effectively immediately, and applies to all ICE units and covers “enforcement actions, custody decisions, the execution of final orders of removal, financial expenditures and strategic planning.” It will remain in effect until Secretary Mayorkas issues new enforcement guidelines which he anticipates issuing in less than 90 days.

The ICE Priorities Memo is an important step in advancing President Biden’s commitment to humane immigration system and is critical to building a sound prosecutorial discretion policy.

Shoba Sivaprasad Wadhia is a law professor and immigration scholar at Penn State Law at University Park. She is the author of two books: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press) and Banned: Immigration Enforcement in the Time of Trump, (NYU Press).

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