In a memorandum dated September 30, 2021, Alejandro Mayorkas, Secretary of the Department of Homeland Security, issued long-awaited guidance on prosecutorial discretion and civil enforcement priorities. Titled “Guidelines for the Enforcement of Civil Immigration Law,” the seven-page document is Department wide and provides guidance for the apprehension and removal of noncitizens. This post includes some highlights of this memorandum but also encourages earlier readings on this blog (here, here and here) and here for earlier thoughts and recommendations on prosecutorial discretion in the Biden administration. A letter from immigration law scholars to the Secretary with recommendations on prosecutorial discretion can found here.
Foundation. The September 30 memorandum begins with naming prosecutorial discretion as a foundational principle in the immigration arena. Consistent with earlier guidance on prosecutorial discretion, the new memo notes the limited resources of the agency the impossibility of enforcing the immigration laws against every undocumented or otherwise removable noncitizen.
The new memo states that the fact of being removable should not alone be a basis for immigration enforcement. It also recognizes the contributions of the majority of those who are undocumented, profiling those “who work on the frontlines in the battle against COVID, lead our congregations in faith, teach our children, do back-breaking work to help deliver food to our table, and contribute in many other meaningful ways.”
Priorities. The September 30 memorandum lists the following three civil immigration enforcement priorities. 1) Threat to National Security; 2) Threat to Public Safety; 3) Threat to Border Security. Whereas earlier guidance had defined “Threats to Public Safety” to include those who committed an aggravated felony, the new memorandum is more nuanced, and takes into account the individual aggravating and mitigating factors of the individual, requiring an assessment of “the individual and the totality of factors and circumstances.”
Like the positive factors listed in historical guidance documents on prosecutorial discretion, the mitigating factors listed in the September 30 memorandum include advanced or tender age, lengthy presence in the United States, a mental condition that would have contributed to criminal conduct, impact of removal on family in the United States, and military service to name a few. This is an important change as it provides officers with more flexibility to consider each case individually.
The September 30 guidance defines “Threats to Border Security” as those who were apprehended at the border while trying to enter the United States unlawfully as well as those who were apprehended in the United States after unlawfully entering the United States on or after November 1, 2020. Again, the guidance advises officers to consider cases individually and based on a totality of the facts and circumstances.
Civil Rights and Civil Liberties. Importantly, the guidance states that a noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, or political associations, as well as First Amendment activity, shall never be factors in deciding to take enforcement action. Notably, the guidance states “We must ensure that enforcement actions are not discriminatory and do not lead to inequitable outcomes.” This language is more inclusive than what has existed historically and is an important step towards improving racial disparities in immigration enforcement.
Guarding Against Immigration Enforcement as a Tool for Retaliation. The guidance instructs that immigration enforcement should not be used as a retaliatory tool again noncitizens who exercise their workplace, tenant and other rights and that serving as a witness in a labor or housing dispute should be considered a mitigating factor. This is important to ensuring that noncitizens have the agency to exercise their rights without fear of immigration enforcement.
Process and Review. The September 30 memorandum leaves the exercise of prosecutorial discretion to the judgement of personnel and identifies extensive training, a review of enforcement decisions in the first 90 days of implementation, and assurance that decision making is consistent across the agency and Department. This is a significant and important change given the historical lack of transparency or consistency in how prosecutorial discretion decisions are applied.
Data Collection. The September 30 memorandum also underscores the importance of data collection on every enforcement action. This data collection is crucial to help identify disparities in immigration enforcement and discretion, and to improve transparency and accountability.
Effective Date. The September 30 memorandum is effective 60 days from publication, November 29, 2021. On this date, the previously issued interim guidelines will be rescinded.
The September 30 Memorandum is at once comprehensive, compassionate and pragmatic about the important role prosecutorial discretion plays in the immigration system. The guidance is also attentive to the intersection between race and immigration enforcement, and the contributions of most immigrants living in the United States without formal status.
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).