Toward a New Framework for Immigration Processing:
Principles for DHS’s Anticipated Memo on Immigration Enforcement
March 2021
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The We Are Home campaign is a multi-racial, multi-ethnic, multi-generational coalition with more than 120 partners representing millions of people across the country. We believe that together we can help build a country where everyone can thrive and reach their full potential, no matter their race, birthplace, age, religion, sexual orientation, or gender identity — while reversing the damaging and dangerous immigration policies implemented by previous administrations.
On January 20th, the Acting Secretary of the Department of Homeland Security (DHS) issued a memorandum announcing a top-to-bottom review of DHS’s enforcement policies and practices. On February 18th, the Acting Director of Immigration and Customs Enforcement (ICE) issued a subsequent memo outlining a set of priority categories for immigration enforcement. The memo states that DHS Secretary Mayorkas will issue a final set of new enforcement guidelines within 90 days of the memo, i.e. by mid-May.
Both the January 20th memo and the February 18th guidelines define categories of people that DHS and ICE consider to be “enforcement priorities.” These enforcement priorities reduce the wide net cast by former President Trump, and are narrower than the overbroad priority categories issued by DHS in 2014 under the Obama Administration. However, the memos continue to rely on flawed and racist frameworks that stigmatize all immigrants as potential threats to national security or public safety, with vague and sweeping criteria for identifying such “threats” that will disproportionately harm Black and Brown immigrants, including Muslims. Specifically, the February 18th memo uses the category of offenses known in immigration law as “aggravated felonies” and an ill-defined set of gang-related activities as proxies for “public safety.” The guidelines also fail to make an explicit commitment to providing meaningful access to asylum for recent border crossers.
In order to reverse the dysfunction and brutality of the immigration enforcement system, we urge DHS to issue a new final memo that flips the framework of previous administrations by focusing on the exercise of positive discretion rather than defining targets for enforcement, thereby reducing the number of people ultimately detained and deported. The final memo – which we anticipate will apply to all ICE enforcement actions, including arrests, NTAs, detainer issuance, custody decisions, and deportations – should set out a non-exclusive, non-exhaustive list of positive factors that indicate an exercise of prosecutorial discretion. This new framework should advance the goals of keeping families together, countering racial injustice in the criminal legal system, and allowing people who are eligible for affirmative pathways to legal status a fair chance to pursue such status. Specifically, we recommend that the final memo:
1) Exercise forbearance (protection from enforcement) for broad categories of people. New guidelines should announce broad categories of individuals with respect to whom forbearance will be exercised. These categories might include, for example: people who care for minor children or elderly parents; people who are facing immigration consequences from drug-related offenses; people with a pending application for a benefit that could lead to relief from deportation (such as asylum or a U or T visa); and people vulnerable to removal proceedings because of conduct (date of unauthorized entry, visa overstay, or involvement in the criminal legal system) that falls outside of a newly defined statute of limitations of at most five years.
2) Require that all cases be considered holistically. New guidelines should encourage ICE officers and adjudicators to consider all cases holistically, including those that fall outside of the categories described above. Decisions should rely on factors including length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings, including administrative proceedings or complaints related to workplace violations; or compelling humanitarian factors such as conditions of life in a person’s home country, history of trauma, disability, poor health, age, pregnancy, a lawfully-present parent, spouse or child of any age, or a seriously ill relative. Given the extreme punitive nature of bars to permanent immigration relief, individuals who have convictions are especially in need of favorable exercises of prosecutorial discretion.
3) Reject categorical exclusions and presumptive indicators of public safety risks. New guidelines should not include categorical exclusions from positive discretion based on prior contact with the criminal legal system. Specifically, the February 18th memo’s designation of aggravated felony convictions and gang-related conduct as presumptive indicators of public safety risk must be struck from subsequent memos. Targeting people for enforcement based on past convictions or contact with the criminal legal system disregards the increasing recognition that racism and inequities permeate that system – from policing to prosecution to sentencing. It also runs counter to the President’s stated commitment to racial equity.
DHS should abandon the designation of any “aggravated felony” offense as a presumptive indicator of public safety risk. Aggravated felony is a broad and vaguely defined term of art that includes offenses like shoplifting and turnstile jumping. It unavoidably amplifies the harms of aggressive, arbitrary, and racist local policing practices. The determination of what offenses constitute aggravated felonies is also legally complex, varying in different circuit court jurisdictions and dependent on the elements of the state offense giving rise to the conviction. Line DHS officers should not be responsible for making such determinations.
Additionally, DHS must abandon the use of gang-related allegations as a proxy for public safety. Gang databases and gang-related allegations are notoriously racist, arbitrary, and overbroad in implementation. Relying on them exacerbates the harm of law enforcement tactics “that criminalize[] culture and relationships among people in low-income black and Latino communities.”
4) Treat asylum as a humanitarian imperative. New guidelines must make it clear that recent border crossers are not a priority for enforcement, and that DHS is committed to providing safe and meaningful access to asylum at the border, without the use of detention and in partnership with community-based organizations. The January 20th and February 18th memos treat all new arrivals as presumptive security risks, a harmful approach that punishes migrants for fleeing harm and seeking safety in the United States. Instead, the goal should be to ensure access to services, protection, and due process for all.
The We Are Home campaign, the National Immigrant Justice Center, the National Immigration Project, and 100 partner organizations have called on the administration to adopt these recommendations as part of seven enforcement reform priorities for the first 100 days. These seven actions represent the path forward to a transformed immigration system that does not center on enforcement and that recognizes the dignity and humanity of all immigrants.