DHS Announces Federal Law Enforcement Priorities Regarding Undocumented Noncitizens

On September 30, 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued a memorandum outlining law enforcement priorities and apprehension guides for removing non-citizens who illegally enter the United States or overstay in the country.

Secretary Mayorkas encourages law enforcement to "exercise prosecutorial discretion" to determine "who decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders."

According to the memo, many of the approximately 11 million undocumented non-citizens in the United States are contributing members of society and "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." As a result, the memo urges discretion when making removal decisions.

The civil immigration enforcement priorities focus on the apprehension and removal of noncitizens who pose a threat to public safety, national security, or border security.  “[O]ur personnel must evaluate the individual and the totality of the facts and circumstances and exercise their judgment accordingly,” Secretary Mayorkas stated, “The overriding question is whether the noncitizen poses a current threat to public safety.”

Further, the guidance states law enforcement shall prioritize the “civil rights and civil liberties.” Specifically, a “noncitizen's race, religion, gender, sexual orientation or gender identity, national origin, or political associations shall never be factors in deciding to take enforcement action.” The only exception are asylum cases, in which an individual’s ethnic or religious background does play a role in determining case merit.

The memo also calls for protection against unscrupulous practices used by employers and landlords when they know their workers or tenants are undocumented. Suppressing wages, charging inflated rent, and not following housing ordinances are just a few of the ways in which undocumented immigrants are mistreated by those with authority, according to the memo.

“We must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices. A noncitizen's exercise of workplace or tenant rights, or service as a witness in a labor or housing dispute, should be considered a mitigating factor in the exercise of prosecutorial discretion,” continued Secretary Mayorkas.

The concluding sections of the guidance relate to ensuring the quality and integrity of civil immigration enforcement actions and implementing the guidance. It calls for training, data collection, a case review process, and a process for reviewing effective implementation of the guidance.

The guidance will become effective sixty days from the release of the memo, on November 29, 2021.