Immigration and Customs Enforcement rolled out new measures Thursday that limit the categories of immigrants its officers can arrest within the United States.
Immigrants who committed less serious crimes now will not be prioritized for arrest, and officers will have to get permission by managers to pursue those people. Under the Trump administration, they did not need permission.
Instead, new temporary internal guidance from acting ICE Director Tae Johnson states that the only immigrants the agency’s Enforcement and Removal Operations officers will take into custody without first obtaining permission are immigrants who are illegally residing in the U.S. and considered to be a national security, border security, or public safety threat.
The instructions are good for approximately 90 days until Homeland Security Secretary Alejandro Mayorkas issues official guidance on how the agency should make arrests.
“Like every law enforcement agency at the local, state, and federal level, we must prioritize our efforts to achieve the greatest security and safety impact,” Johnson said in a statement. “By implementing a system for obtaining prior approval before pursuing certain cases, and through regular reporting of civil immigration enforcement actions, we will better coordinate our efforts, achieve consistency in our operations, and inform the development of the secretary’s new enforcement guidelines.”
The new three categories of immigrants whom officers can immediately take into custody are:
1. National security threats: The new guidelines state that immigrants who are a threat to national security must have engaged in or be suspected of terrorism or espionage.
2. Border security threats: The guidelines define border security threats as anyone arrested for illegally entering the U.S. from Mexico or Canada on or after Nov. 1, 2020. Such a migrant would be a priority for arrest, as well as anyone who was not present in the country before that date — a move that makes illegal immigrants who traveled to the U.S. or overstayed a visa after the 2020 presidential election easy to arrest and potentially deport. Very few illegal immigrants fit into this category.
3. Public safety threats: This category includes those convicted, not just arrested or charged, of an aggravated felony, as well as those involved in criminal gangs or transnational criminal organizations, like MS-13. They must also pose an ongoing threat to the U.S., which can be determined based on the person’s “extensiveness, seriousness, and recency of any criminal activity, as well as mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, and evidence of rehabilitation,” the memo states.
Under former President Donald Trump, ICE officers had authority to focus efforts on immigrants with criminal histories, including driving under the influence and less violent crimes. President Biden signed an executive order shortly after taking office last month that mandated DHS agencies take a softer approach to enforcing immigration and border policies. ICE officers will now have to go through an internal approval process by management to go into communities and arrest specific immigrants who do not meet any of the three criteria.
ICE defended the change in a statement issued Thursday afternoon, saying that its decision to go after a smaller pool of public safety threats “is consistent” with laws passed by Congress.
Last month, ICE was directed by the Biden administration to halt nearly all deportations for 100 days. Then-acting DHS Secretary David Pekoske said the move would allow the department to take stock of its immigration and border policies as the department leadership transitioned between Republican and Democratic administrations. Only those in the same three categories would be eligible for removal from the U.S.
