The U.S. Immigration and Customs Enforcement (ICE) delivered interim guidance (Johnson Memorandum) on February 18, 2021 that became effective immediately regarding priorities for custody decisions, financial expenditures, enforcement planning, strategic planning, and implementation of final orders of removal. Thereafter, on May 27, 2021, Acting General Counsel Joseph B. Maher issued a memorandum (Maher Memorandum) that further expanded on these issues. Both memorandum provide the groundwork for implementing prosecutorial discretion within ICE and the Immigration Courts across the United States.
The guidance directed a comprehensive Department of Homeland Security review of civil immigration enforcement policies, established interim enforcement priorities, instituted a 100-day pause on certain removals, and rescinded several existing policies.
Comprehensive Review of Enforcement Policies and Priorities
Aspects of immigration enforcement, such as detention space, prioritizing the use of enforcement personnel, and removal assets, will be assessed during the review. In addition, policies governing detention, prosecutorial discretion, and interaction with local and state law enforcement will also be reviewed. The review will ensure that the department’s mission remains in line with the core values for carrying out duties.
Interim Civil Enforcement Guidelines
Due to the limitation of resources, DHS cannot oversee all violations of immigration law. Instead, DHS shall enforce the law according to changing circumstances to protect national and border security and public safety. Hence, the department’s priorities for enforcement will be as follows:
1. National Security
Individuals who are wrongfully engaged in, or suspected of engaging in, acts of violence or terrorism that pose a threat to the security of the country.
2. Border Security
Individuals who attempt to enter the US unlawfully and are detained at the border or ports on or after November 1, 2020.
3. Public Safety
Individuals that are determined to pose a threat to public safety and either (1) have been convicted of an felony; (2) convicted of an offense for which an element was active participation in a criminal street gang; or (3) those who are over 16 years old and have intentionally participated in criminal gang or transnational criminal organizations.
These enforcement priorities will assist DHS in making all civil enforcement and removal determinations including, but not limited to, whether to assume custody of a noncitizen, whether to issue or cancel a Notice to Appear, whether to stop or question a noncitizen, whether to issue a bond for release from immigration detention, and whether to execute final orders of removal.
The Office of Principal Legal Advisors (OPLA) attorneys may exercise prosecutorial d