Immigration Officers Will Have More Discretion Over Arrests, Deportations

Immigration Officers Will Have More Discretion Over Arrests, Deportations

New guidelines would give ICE officers more leeway to decide which immigrants are a public-safety threat

Homeland Security Secretary Alejandro Mayorkas is revising guidelines governing which immigrants in the country illegally should be targets for arrest or deportation, to give U.S. Immigration and Customs Enforcement officers more discretion following complaints from ICE officers and some Republicans that the Biden administration’s initial approach was too restrictive.

Under the new set of guidelines, which will become effective in 60 days, ICE officers would have the latitude to decide which immigrants pose a public-safety threat, rather than follow strict categories the administration put in place earlier this year making only immigrants who have committed aggravated felonies—a term used in immigration law that captures some of the most severe crimes, including murder, rape and human trafficking—eligible for arrest or deportation.

The updated guidelines respond to complaints from ICE officers that they weren’t being allowed to pursue dangerous felons who had committed other offenses—ICE briefly put off an operation to pursue sex offenders under the Biden administration’s initial set of guidelines—as well as lawsuits from Texas and other conservative states claiming they were too restrictive.

Under the new guidelines, officers are given a set of factors to consider when deciding whether an immigrant poses a current public-safety threat, Mr. Mayorkas said on a call with reporters on Thursday.

“To treat people and questions of public-safety threats categorically like that actually is not effective and could lead to ineffective and unjust results,” Mr. Mayorkas said. “And so therefore we are requiring and, frankly, empowering our workforce to exercise their judgment.”

The new factors to consider include the harm suffered by the victim of the crime in question, the length of the immigrant’s prison sentence, the sophistication of the crime and whether or not the immigrant used a gun.

The guidance also encourages officers to weigh potential mitigating factors, such as how long ago the crime occurred, whether the immigrant is too young or old, and what sort of effect deporting the immigrant would have on his or her family members

Mr. Mayorkas’s guidelines also allow immigration officers to go after anyone they deem poses a national-security or border-security threat—defined as anyone who crossed the border illegally after Nov. 1, 2020. The Department of Homeland Security and the nonpartisan Migration Policy Institute both estimate there are about 11 million immigrants in the country without a permanent legal status, and under the Biden administration’s priorities most of them wouldn’t be targets for deportation.

“In exercising our discretion,” the updated guidelines state, “we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years.”

The memo directs ICE officers not to deport someone if they have a pending visa or another form of humanitarian relief available. It also states immigrants shouldn’t become targets for deportation if they speak out about workplace or landlord mistreatment, or become witnesses to investigations about unscrupulous employers or landlords.

Mr. Mayorkas has faced deep anger from immigration officers and Homeland Security Department agents for Biden administration policies they felt hampered their ability to fully carry out immigration laws. He attempted to thread the needle on his message, speaking at once of a more humane immigration system while also praising the integrity of Border Patrol agents—such as in their handling of a camp of Haitian migrants in Del Rio, Texas, last week.

At a press briefing last Friday, Mr. Mayorkas said he would conduct a thorough investigation of Border Patrol agents on horseback who appeared to be intimidating Haitian migrants in several images, but said agents on horse patrol most often save lives.

Immigration advocates tentatively approved of the new guidelines, which for the first time require officers to consider reasons not to arrest immigrants. But they worried giving officers too much freedom could result in more arrests and deportations.

“There is no humane way to prioritize who is the target of immigration enforcement,” said Stacy Suh, program director of Detention Watch Network, an advocacy group opposing ICE detention.