After the Supreme Court’s decision in United States v. Texas, 143 S. Ct. 1964 (2023), the path was clear for DHS to re-implement its enforcement priorities across the country. But re-implementation was not automatic and in the wake of the Supreme Court decision, it was not immediately clear when the priorities would go back into effect. Recently, the ICE Office of the Principal Legal Advisor updated its public-facing website, providing:
Pursuant to the Supreme Court rules, the opinion of the Supreme Court took effect on July 25, 2023. See Sup. Ct. R. 45.3. On Friday, July 28, 2023, the ICE Deputy Director and Senior Official Performing the Duties of the Director and the Principal Legal Advisor instructed all ICE personnel to reinstitute DHS’s [civil enforcement priorities], effective immediately.
With confirmation that the enforcement priorities are back in effect for all ICE personnel, including DHS attorneys in immigration court and deportation officers, it is worth re-visiting the Mayorkas Memorandum which spelled the priorities out.
Importantly, the Mayorkas Memorandum recognizes “the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years.” The fact that an individual is removable “therefore should not alone be the basis for enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.” The Memorandum then identifies three priorities for civil immigration enforcement:
A. Threat to National Security: noncitizens engaged in or suspected of terrorism or espionage-related activities or who otherwise pose a danger to national security are a priority for apprehension or removal.
B. Threat to Public Safety: noncitizens who pose a current threat to public safety, typically because of serious criminal conduct, are a priority for apprehension or removal. There are no bright lines or categories of convictions which necessarily make one fall into this priority category. Rather, the Memorandum indicates that an assessment of the individual and the totality of the facts and circumstances is required. Factors listed that can militate in favor of declining enforcement action include:
-Advanced or tender age;
-Lengthy presence in the United States;
-Mental conditions that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment;
-Status as a victim of crime or victim, witness, or party in legal proceedings;
-The impact of removal on family in the U.S., such as loss of provider or caregiver;
-Whether the noncitizen may be eligible for humanitarian protection or other immigration relief;
-Military or other public service of the noncitizen or their immediate family;
-Time since an offense and evidence of rehabilitation;
-Conviction having been vacated or expunged.
The overriding question that ICE personnel are required to answer is whether the noncitizen poses a current threat to public safety.
C. Threat to Border Security: noncitizens who pose a threat to border security are a priority for apprehension and removal. Noncitizens are generally considered to be a threat to border security if they are apprehended at the border or a port of entry trying to unlawfully enter the U.S. or if they are apprehended in the U.S. after unlawfully entering after November 1, 2020.
Noncitizens facing immigration enforcement actions such as arrest, removal proceedings, or deportation from the United States, should consider whether there is an argument that they should not be considered priorities under the again-in-effect Mayorkas Memorandum. If so, they should consider approaching the appropriate ICE personnel with a request for prosecutorial discretion, even if they have had such a request denied in the past. If you or a loved one would like to discuss the enforcement priorities and whether they could impact your case, contact us to schedule a consultation.
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