Last week, ICE issued new enforcement priorities meant to guide its immigration detention and removal activities. In a memo signed by Acting Director Tae D. Johnson, the agency outlines three types of risks—national security, border security, and public safety—that it will prioritize at least temporarily. The memo notes that permanent priorities are expected within 90 days. Until permanent priorities are distributed, the Johnson memo, released on February 18, sets ICE’s enforcement parameters. It does not, however, apply to Customs and Border Protection, the Department of Homeland Security agency in which the Border Patrol is housed.
Priority Category 1
Priority category 1, national security risks, focuses on people suspected of engaging in terrorism or espionage. I expect that this category will receive very little use.
Priority Category 2
The agency’s second priority, “border security” risks, is likely to come up immediately. Anyone who was apprehended at the border “while attempting to unlawfully enter the United States on or after November 1, 2020” or who “was not physically present” before November 1 will be deemed a priority target for confinement and removal.
In a footnote, the Johnson memo clarifies that migrants who fear persecution will be allowed to request asylum, suggesting an important turn away from the Trump administration’s concerted efforts to impede requests for asylum. According to footnote 5, the section of federal immigration law, Immigration and Nationality Act § 235, that allows asylum-seekers to avoid expedited removal and requires that they receive a credible-fear interview will “continue to apply.” Importantly, footnote 5 does not exempt asylum-seekers from the border-security risk prioritization category. Instead, it describes the asylum process as running in parallel with the enforcement prioritization scheme.
Piecing together the recognition that § 235 provides a specific process for asylum requests with the Johnson memo’s border-security prioritization, people coming to the United States to request asylum presumably will be allowed to request protection, but they will also be considered priorities for detention and removal.
More difficult yet is gauging how this will play out when it comes to ICE’s imprisonment practices. Will ICE agents view asylum applicants detention priorities, meaning agents will hold these individuals in an ICE prison? Another section of the Johnson memo instructs agents that removal orders should not be executed without “a compelling reason” against people with “pending applications for immigration relief and are prima facie eligible for such relief.” Because this sentence refers explicitly to removal orders—and makes no mention of detention—I see this as requiring a favorable view of asylum applicants when it comes to removing them from the United States, but not when it comes to detaining them.
Priority Category 3
Priority category 3 turns to “public safety” risks. According to the Johnson memo, this is a two-part inquiry. First, the person must have been convicted of an “aggravated felony,” a convoluted twenty-one part phrase that has a specific meaning in immigration law, or must have had some involvement with a gang. In footnote 6, the memo acknowledges that it is not easy to determine what constitutes an aggravated felony. As a result, it instructs ICE agents to consult “a final administrative determination” (which I take to mean a decision of an immigration judge or the Board of Immigration Appeals), conviction records, or legal counsel from an ICE attorney.
This seems to be an effort to prevent ICE agents from using the nuance and complexity of federal immigration law to declare just about every offense an aggravated felony. If the agency’s leaders, including at the field office level, actually require ICE officers to explain which of these three sources they turned to before concluding that a crime is an aggravated felony, footnote 6 might go a long way toward curtailing ICE’s penchant for interpreting its authority expansively.
Pushing in the opposite direction, the Johnson memo’s use of gang activity as an alternative to the aggravated felony conviction requirement broadens priority category 2 immensely. The federal law definition of a “criminal street gang,” 18 U.S.C. § 521(a), referenced in the memo requires the involvement of as few as five people who together have as a “primary purpose” the commission of any federal drug crime punishable by at least five years imprisonment, any crime of violence, or human trafficking.
As an alternative to that definition, however, the Johnson memo allows ICE agents to target anyone at least 16 years old who “intentionally participated in an organized criminal gang.” This option does not reference the § 521(a) definition. Instead, it is written rather vaguely. Consequently, I’m concerned that ICE agents will tap existing databases of suspected gang members created and maintained by state and local law enforcement agencies. Some of these databases are notoriously incorrect. There’s little oversight of gang databases, so it’s hard to know who is listed as a gang member and even harder to know how to contest identification as a gang member. At other times, ICE appears to rely on claims by law enforcement officers in the countries from which migrants are fleeing. Some of these claims have turned out to be flimsy or fabricated.
Second, the public-safety prioritization requires that a person convicted of an aggravated felony or involved with a gang also “poses a threat to public safety.” On its own, it’s hard to know what to make of this broad standard. The Johnson memo explains that ICE agents must query whether someone poses a threat to public safety by exploring the “extensiveness, seriousness, and recency of the criminal activity.” In addition, ICE agents must consider “mitigating factors” such as “personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available.” Just like the public-safety threat consideration, the list of mitigating factors is itself rather broad. Until we see how ICE is actually applying these requirements, it’s hard to say whether it will be a meaningful consideration or whether it will be an after-thought to the aggravated felony conviction requirement. My hunch is that the aggravated felony conviction requirement will become the overwhelming factor for priority category 2 consideration for the simple reason that conviction documents are readily available and a large body of case law exists to help agents interpret which crimes are defined as aggravated felonies.
These priority categories are intended to apply to all facets of ICE’s enforcement activities, from issuing a detainer to executing an immigration judge’s removal order. In footnote 7, the memo appears to contemplate that, in some circumstances, enforcement actions will occur at courthouses and locations deemed “sensitive” under the agency’s own guidelines.
Federal law gives police and prosecutors immense discretion to initiative enforcement actions in all realms. That is no different when it comes to immigration enforcement. Indeed, in recent years courts have had occasion to reiterate that immigration authorities possess the discretion to start or stop enforcement actions. As the Supreme Court put it in the decision over Arizona’s so-called “show me your papers” law, Senate Bill 1070, “A principal feature of the removal system is the broad discretion exercised by immigration officials.”
Keeping ICE’s discretionary authority in mind, the Johnson memo repeatedly emphasizes that individual determinations are critical. The agency’s “officers and agents are expected to exercise their discretion thoughtfully,” the memo says. Falling outside the three priority categories, the memo makes clear elsewhere, doesn’t mean those people are immune from enforcement actions. It merely requires a different approval process before initiating an enforcement action.
Moving forward, it will be interesting to see how much the permanent priorities promised in a few months will reflect these categories.