Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security (DHS) recently issued new guidelines for the apprehension and removal of noncitizens who are physically present in the U.S. The guidelines state that there are an estimated 11 million undocumented or otherwise removable noncitizens in the U.S. and that DHS does not have the resources to apprehend and seek the removal of all 11 million. The guidelines recognize that this requires DHS to exercise their discretion and determine whom to prioritize for immigration enforcement action.
The guidelines state that they 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. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways. …. The fact an individual is a removable noncitizen therefore should not alone be the basis of an 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 guidelines indicate that they will prioritize enforcement action and removal of noncitizens who are a threat to our national security, a threat to public safety or a threat to border security.
Those considered a threat to national security would be those who are engaged in terrorism, espionage or related activities.
Those who are considered to pose a threat to border security are those who are apprehended at the border while attempting to unlawfully enter the U.S. (note that showing up at the border and asking for asylum is NOT an attempt to unlawfully enter) or those who are apprehended in the U.S. after unlawfully entering after Nov 1, 2020.
Those who are considered a threat to public safety are those who have engaged in serious. criminal conduct.
The guidelines further indicate that the determination of whether noncitizens are a threat to the U.S. is not to be determined by bright lines or categories but instead require an assessment of the individual and the totality of the facts and circumstances. Aggravating factors that mitigate in favor of enforcement actions include the gravity of the offense, the nature and degree of harm, use or threatened use of a weapon, and a serious prior criminal record.
Mitigating factors that point to a decision to decline enforcement action can include advanced or tender age, lengthy presence in the U.S., the impact of removal on family in the U.S. (such as loss of provider or caregiver) military or other public services of the noncitizen or their immediate family among other factors.
The guidelines indicate that DHS must exercise their discretionary authority to remove a person in a way that protects civil rights and civil liberties – that a person’s race, religion, gender, sexual orientation or gender identity, national origin, or political associations should never be factors in deciding to take enforcement action and that a person’s exercise of their First Amendment rights should never be a factor in deciding to take enforcement action. It further states that State and local law enforcement agencies with which DHS works must respect individuals’ civil rights and civil liberties
Another section of the guidelines talks about guarding against the use of immigration enforcement as a tool of retaliation for the assertion of legal rights. DHS points out that unscrupulous employers exploit the immigration status. of employees and their vulnerability to removal by suppressing wages, maintaining unsafe working conditions, and quashing workplace rights and activities. Likewise unscrupulous. landlords exploit their tenants by charging inflated rental costs and failing to comply with housing safety ordinances and other housing standards
For many years, I have been advocating for common sense and compassionate enforcement of removal actions. It has never made sense to remove a law-abiding person who is contributing to our country and to have less time to remove dangerous criminals. It is gratifying to see that position written into these guidelines.
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