Secretary Mayorkas Issues Lawless Immigration Enforcement Guidelines

FAIR Take Special Edition | October 2021

In the midst of a raging border crisis and a seemingly never-ending pandemic, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued new guidance on Friday to severely limit immigration enforcement. While the policy memorandum purports to not “compel a specific action to be taken,” Mayorkas directly obstructs the rule of law by explicitly assuring that an alien’s illegal immigration status alone will not compel any DHS enforcement action.

Specifically, Mayorkas announced that priorities for removal remain limited to illegal aliens who pose a threat to national security, public safety, or border security, as the guidance narrowly defines. Under these categories, DHS officers are only permitted to consider illegal or criminal aliens for removal who have engaged in terrorism or espionage; pose a current threat to public safety; or who have been apprehended after recently crossing the border illegally (after the recent and arbitrary date of November 1, 2020).

Most troubling, Mayorkas’s memorandum goes into great detail to outline hypothetical aggravating and mitigating factors that officers must apply when considering whether to initiate an enforcement action against an alien who poses a “current threat to public safety” on account of their serious criminal history. While officers may consider factors such as the sophistication or seriousness of an alien’s crimes as permitting enforcement, the guidance alarmingly encourages DHS officers to refuse to enforce immigration law if sufficient mitigating factors exist.

The long “non-exhaustive” list of mitigating factors include circumstances such as whether the alien has been illegally present in the United States for a lengthy period; has family in the United States that will be negatively affected by the alien’s removal; has been the witness to a crime; has filed a housing or employment related complaint; or if the alien or a member of their family has performed some sort of public service in the United States. Accordingly, even if an alien is in the United States illegally and commits a crime that would cast them as a threat to public safety, Mayorkas nonetheless explicitly encourages DHS to utilize prosecutorial discretion to shield that alien from deportation given the right combination of factors. This is true even if many mitigating factors are wholesale unrelated to the individual alien, the crime they committed, or their immigration status.

In short, the updated priorities do very little to uphold the rule of law or protect American citizens and residents from illegal aliens who pose public safety risks. The priorities, however, go a long way to providing immigration attorneys fodder to getting criminal aliens released from DHS custody and back into American communities.

“The administration’s move to severely limit immigration enforcement is another in a long line of decisions that worsen – not fix – historic levels of illegal immigration into our country. The Department of Homeland Security exists to defend our borders, enforce existing immigration laws, and preserve our sovereignty. Once again, the Biden administration chose to undermine immigration enforcement for cheap political points. It is unconscionable, and could not come at a worse time,” charged FAIR President Dan Stein shortly after the guidance was issued.

DHS’s new enforcement restrictions go into effect on November 29, 2021. Upon the effective date, the memorandum will rescind and replace (1) the January 20, 2021 Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities issued by then-Acting Secretary David Pekoske, and (2) the February 18, 2021 Interim Guidance: Civil Immigration Enforcement and Removal Priorities issued by Acting ICE Director Tae D. Johnson.