- Throughout most of its history, there were no restrictions on the ability of ICE agents and officers — and agents from the agency's predecessor, INS — to arrest, detain, prosecute, and deport removable aliens, and in particular criminals.
- That changed, however, in March 2011, when then-ICE Director John Morton issued the "Morton memo".
- The Morton memo contended that ICE only had resources to remove 400,000 aliens annually, and so it had to "prioritize" its immigration-enforcement efforts.
- Pursuant to that memo, aliens who posed a danger to national security, recent entrants, those convicted of aggravated felonies, and most criminal aliens were priorities for removal, but that memo did not prevent ICE from arresting or deporting other removable aliens.
- Nonetheless, in the fiscal year after the Morton memo was issued, total ICE removals fell 23 percent, and ICE interior removals of aliens unlawfully present in the United States declined by more than 43 percent.
- In November 2014, DHS Secretary Jeh Johnson rescinded the Morton memo, and instituted his own priorities memo. It applied not only to ICE, but to CBP and USCIS, as well.
- As in the Morton memo, aliens posing a danger to the national security, recent entrants, criminal aliens, and aliens ordered removed on or after January 1, 2014, were identified as priorities in the Johnson memo.
- The Johnson memo limited the number of criminal offenses that were priorities for immigration enforcement, with some notable inclusions. Among the "significant misdemeanors" that were to be prioritized, for example, was DUI.
- Under the Johnson memo, ICE could still arrest aliens who were not "priorities", if agents and officers received field-level supervisory approval.
- The Johnson memo drastically affected immigration enforcement. ICE interior removals fell an additional 32 percent the fiscal year that memo was issued, and in the next fiscal year (FY 2016), total removals dropped to 201,020 — just more than half of the 400,000 removals Morton claimed ICE had the resources to accomplish.
- Trump issued an executive order (EO) rescinding the Johnson memo on January 25, 2017.
- That EO prioritized the removal of aliens: removable under the criminal, national security, expedited removal, and fraud grounds of inadmissibility and deportability; who had committed, been charged with, or convicted of crimes; and who had abused public benefit programs.
- ICE officers could arrest, detain, and remove other aliens who were not priorities without prior approval under that EO, but while the agency's interior arrests and removals rose slightly after that EO was issued, they never came close to reaching their FY 2014 levels.
- On January 20, 2021, then-Acting DHS Secretary David Pekoske issued a memorandum rescinding the guidance under that EO, and setting forth interim guidance that significantly restricts, to the point of nullifying, immigration enforcement.
- The Pekoske memo bars removal of most aliens from the United States, and sets strict limits on ICE's ability to stop, arrest, detain, and prosecute removable aliens, including criminals.
- ICE can still arrest and remove aliens who pose a danger to national security, but only aliens who were apprehended entering illegally or without proper documents after November 1, 2020, are a priority for arrest and removal on immigration grounds alone.
- Further, the only criminal priority in the Pekoske memo is those aliens convicted of aggravated felonies "who are determined to pose a threat to public safety". Even then, enforcement is limited to that class of aliens who were released from criminal custody after January 20, 2021.
- Moreover, these priorities apply not just to the arrest, detention, and removal of removable aliens, but also to ICE administrative removal prosecutions, and decisions to grant deferred action and parole. This will allow criminal aliens to gain quasi-legal status in the United States.
- Immigration enforcement against any other alien aside from the limited priorities in the Pekoske memo requires approval at the headquarters level, from the ICE director him- or herself.
- Recent reporting indicates that under proposed DHS guidance, aliens convicted of certain crimes will not be considered public safety priorities for immigration enforcement, including aliens convicted of identified aggravated felonies. Most notably, aliens convicted more than 10 years ago of any aggravated felony generally will not be a not be considered a threat to public safety, or an enforcement priority.
- In addition, in a stark departure from even the restrictive Johnson memo, ICE will not be allowed to arrest, detain, or deport most illegal aliens convicted of DUI.
- These policies will create a magnet that will draw aliens to enter the United States illegally, and encourage those illegal aliens already here to remain forever. It will also allow dangerous criminals to be released to or remain on the streets, posing a danger to U.S. communities.
I showed in a post last week how, except for the last two years of the Obama administration, ICE enforcement under former President Trump was actually less rigorous than it had been under his immediate predecessor. At the end, I noted that under Biden's proposed plan, ICE enforcement would be even more constrained than it had been under his old boss. Here's proof.
Few Aliens Would Be Arrested and Removed Under Biden Plan
Before I begin, though, I recommend that you read my colleague Jessica Vaughan's February 10 post, "ICE Records Reveal Disturbing Impact of Biden Enforcement Freeze". Here is the key takeaway:
If the new Biden deportation policies had been in force and applied to ICE's 2018 interior caseload, a total of 91,993, or 96.5 percent, would not have been subject to removal. Only about 3,367, or 3.5 percent, would have been considered appropriate to remove from the country.
Note that by and large, the aliens removed by ICE in FY 2018 were not single mothers caring for children, or the fellow working in the kitchen of your local restaurant. Almost 91 percent had criminal convictions or were facing charges. In fact, 5,914 were known or suspected gang members and suspected terrorists.
Restrictions on ICE Enforcement
For most of the time that the immigration laws have been enforced in the United States, ICE — and its predecessor the INS — arrested, detained, and removed aliens who were excludable, deportable, or removable, without any particular focus on whether they were criminals or not. In my last post, I explained why that was appropriate and necessary.
Morton Memo of March 2, 2011, Limited ICE Arrests and Removals
That all changed on March 2, 2011, when then-ICE Director John Morton issued a memorandum captioned "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens" (the Morton memo). Morton contended that ICE only had the resources to remove 4 percent (400,000) of the aliens illegally present in the United States, and therefore the agency had to prioritize immigration enforcement.
The Morton memo identified three priorities for arrest, removal, detention, and removal, each of which had several "levels" and/or sub-priorities.
The first priority began with aliens who pose a danger to national security, including terrorists and spies. Criminal aliens made the cut, too, "with a particular emphasis on violent criminals, felons, and repeat offenders". Participants in organized criminal gangs aged 16 and up were a top priority, as were aliens with outstanding criminal warrants, and there was a catch-all for other aliens who posed a serious risk to public safety.
Criminals were broken down into three levels: Level 1 was for aliens convicted of "aggravated felonies" as defined in section 101(a)(43) of the Immigration and Nationality Act (INA), and aliens convicted of two or more crimes punishable by more than one year (other felonies). Level 2 included aliens convicted of one felony or three misdemeanors, and level 3 was for aliens convicted of a crime punishable by less than a year (a misdemeanor).
The second priority for enforcement under the Morton memo was recent illegal entrants. Interestingly, Morton explained this was necessary, in part, "to avoid a return to the prior practice commonly and historically referred to as 'catch and release'". I doubt that he appreciated that he was crafting a Donald Trump talking point.
The third priority consisted of fugitive aliens (that is, aliens ordered removed who failed to depart), illegal re-entrants, and others who had "obstruct[ed] immigration controls". Fugitive aliens and those who had re-entered illegally fell into sub-priorities, more or less reflecting priorities one and two above, with non-criminal fugitives and re-entrants the lowest. Aliens who were admitted or gained immigration benefits via fraud rounded out the list.
Notably, the Morton memorandum stated: "Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States." The priorities still took precedence, however, although headquarters approval was not required for action in non-priority cases.
Following issuance of the Morton memorandum, ICE removals fell from 409,849 in FY 2012 to 315,943 in FY 2014 — a 23 percent decrease. More importantly, however, ICE interior removals fell from 180,970 in FY 2012 to 102,224 in FY 2014, a decline of more than 43 percent.
Jeh Johnson Memo of November 20, 2014
The Morton memo was superseded by a new memo from then-DHS Secretary Jeh Johnson, captioned "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants" (the Johnson memo).
Likely not coincidentally, that memo was issued on November 20, 2014, 16 days after the 2014 mid-term election, in which Republicans gained nine Senate seats (taking control of the body), took 13 new House seats, and flipped 11 state legislative chambers. By that point, President Obama could not run again, and Republicans were in charge of Congress.
The Johnson memo pared down the priorities in the Morton memo, applying its own three priorities for enforcement. Those priorities applied not only to ICE, but to CBP and USCIS, as well.
Again, Priority 1 began with national security threats, followed by aliens apprehended entering illegally and at the ports, gang members (with some fairly significant restrictions), and aliens with aggravated felonies (again as defined in section 101(a)(43) of the INA) and non-immigration related felonies.
Those aliens were to be prioritized unless they were eligible for asylum or other relief, or unless a field-level supervisor determined that they would not pose a threat and should not be a priority.
The second priority was much more detailed.
It began with aliens convicted of three or more misdemeanors that arose out of separate incidents, other than "minor traffic offenses" or offenses for which the alien's immigration status was "an essential element".
Next up were aliens convicted of what the Johnson memo described as "significant misdemeanors", including domestic violence, sexual abuse or exploitation, burglary, firearms possession, drug trafficking or distribution, DUI, and any misdemeanor for which the alien was sentenced to 90 days or more.
The third subcategory in Priority 2 was aliens — regardless of where they were apprehended — who had entered or re-entered after January 1, 2014. The fourth included aliens who had "significantly abused the visa or visa waiver system", in the opinion of field-level ICE, CBP, and USCIS supervisors.
There was a similar restriction to that in Priority 2 for aliens eligible for protection or relief, or whom a field-level supervisor determined did not constitute "a threat to national security, border security, or public safety, and should not therefore be an enforcement priority."
Priority 3 for enforcement was aliens ordered removed on or after January 1, 2014. Despite the fact that those aliens had received due process, the Johnson memo nonetheless asserted: "Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority."
There were the usual opt-outs for aliens who were eligible for relief (which they logically would have applied for already), and those who were "not a threat to the integrity of the immigration system". In the case of Priority 3 aliens, though, that decision could be made by a street- or desk-level official.
Similar to the Morton memo, the Johnson memo stated: "Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein." But, unlike Morton, Johnson made clear that such determinations required ICE field-level (but not HQ) concurrence.
Statistics had to be compiled by each agency for all aliens against whom the immigration laws were enforced (with their specific priority, if any), to be sent to DHS annually.
The Johnson memo drastically affected immigration enforcement. ICE interior removals fell from (as noted) 102,224 in FY 2014 to 69,478 in FY 2015 — a 32 percent decrease. They fell again in FY 2016, to 65,322. Total removals (including aliens apprehended at the border) that year were 201,020 — barely more than half of the 400,000 Morton had asserted ICE could achieve.
Trump EO Loosens Restrictions, but Continues Priorities
Trump scrapped the Johnson memo, but he did not return to the status quo before the Morton memo. Rather, he crafted his own priorities for immigration enforcement on January 25, 2017, in Executive Order (EO) 13768, captioned "Enhancing Public Safety in the Interior of the United States".
That EO prioritized the removal of aliens removable under the criminal, national security, expedited removal, and fraud grounds of inadmissibility and deportability, as well as aliens who had committed, been charged with, or had been convicted of crimes.
In addition, aliens who defrauded any government agency or abused public benefits programs were also priorities for removal. Finally, under that EO the removal of aliens who were under final orders of removal but had failed to depart the United States, as well as aliens who posed a risk to national security or public safety, was also prioritized.
Aliens who were removable strictly on the basis of immigration violations status were not specifically prioritized, but nothing therein prevented ICE from arresting, detaining, or removing those aliens.
As I noted in my February 11 post, however, fewer aliens removable solely on immigration grounds were arrested by ICE on an annual basis under Trump than under the any of the first five fiscal years of the Obama administration — that is, before the issuance of the Johnson memo.
And, between FY 2017 and FY 2020, ICE removed just 935,346 aliens, 65 percent of whom had criminal arrests or convictions. Most of the remaining 35 percent of non-criminal removals occurred at the border, and in every fiscal year under the Trump administration, more than 89 percent of interior removals involved aliens with criminal convictions or facing criminal charges.
Most notably, however, the 935,346 removals during those four years were 41 percent lower than Morton asserted ICE had the capacity to perform in his 2011 memorandum.
The Pekoske Memo and Biden's Proposal
I detailed Biden's enforcement proposal in my February 10 post, "Biden's DHS Is Abolishing ICE Without Abolishing ICE".
In short, however, Acting DHS Secretary David Pekoske issued a memo on January 20 captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities" (Pekoske memo). It announced a 100-day review of immigration-enforcement policies, as well as a 100-day hold on almost all removals from the United States (the latter has since been blocked by a federal judge).
Citing, once again, "limited resources", the Pekoske memo limited immigration enforcement to three specified "priorities": spies, terrorists, and other threats to national security; aliens who entered illegally on or after November 1; and aliens released from incarceration on or after the date of that memorandum who have been convicted of aggravated felonies (again, as defined in section 101(a)(43) of the INA).
Unlike its predecessors, however, under the Pekoske memo, only those aliens convicted of aggravated felonies "who are determined pose a threat to public safety" are subject to arrest, detention, and prosecution.
Respectfully, in defining certain crimes as aggravated felonies, Congress has already determined that aliens convicted of those crimes "pose a threat to public safety". Nonetheless, the parameters of exactly which aggravated felonies qualified was unclear from that memo.
There is now some clarity on the issue. The Washington Post reported last week that ICE was preparing new guidelines for immigration enforcement, apparently in line with the Pekoske memo.
As I explained in a February 10 post, aliens convicted of many crimes that are, or could be, aggravated felonies would no longer be subject to arrest, detention, and removal under those proposals. This includes, as a general matter, aliens who have been convicted of any aggravated felonies that are more than 10 years old, and not the basis of the aliens' most recent ICE arrests.
What does that include? Among the crimes designated as "aggravated felonies" are murder, rape, sexual abuse of a minor, drug and firearms trafficking, crimes of violence, and child pornography. To name a few.
Even then, according to the Post, aliens more recently convicted of money laundering, fraud, and tax crimes — which, as I explained in that February 10 post, may well be aggravated felonies — will be immune from ICE enforcement. And aliens convicted of DUI and simple assault will be no-go zones for ICE.
ICE was not only permitted to arrest and remove all of these criminal aliens under the Morton and Johnson memos, they were actually priorities for immigration enforcement. Any alien convicted of any aggravated felony was a Priority 1 target for arrest and removal under the Johnson memo — with no temporal limitation — and DUI was specifically identified as a "significant misdemeanor" under Priority 2.
Moreover, approval from the ICE director is required for "any civil immigration enforcement actions" against aliens who are not incarcerated on criminal grounds.
Even if you believe that ICE was "afforded wide latitude under President Donald Trump" (as the Post contends, and which — as noted — is only true if you limit your scope to March 2011), the Biden proposals constrain ICE enforcement to a degree that would have been unthinkable under the Obama administration.
This is particularly true given the fact that clearance by the ICE director — not field-level supervisor — is required not only for any exceptions to those priorities, but for the arrest of any alien who is not sitting in a local, state, or federal jail or prison. Such HQ micromanagement would have been absurd under even the Johnson or Morton memos, and is likely to yield few exceptions to ICE's new "priorities".
As the foregoing shows, "limited resources" has long been asserted as a reason for immigration-enforcement "priorities", and it is again. But if Morton was telling the truth (and there is no reason to think he wasn't), ICE has never come close to fully utilizing those resources since FY 2012. In other words, you, the taxpayer are paying for immigration enforcement that you are not actually getting.
This is like the Biden administration telling you that you must to buy it an $847,000 Porsche 918 Spyder (which can do 218 mph), when it will only allow you to drive it at 20 mph on the interstate. Worse than that, it is like Congress telling the Biden administration to take that car to Daytona and open it up, and the administration responding that is will only instead use the Porsche on the D.C. Beltway at rush hour in the snow.
ICE Enforcement and Removal Operations, which arrests aliens in the interior and detains and removes them generally, received more than $4.4 billion in FY 2020. Frankly, given the fact that there are more than 11 million aliens unlawfully present in the United States, the component is underfunded. But if the Biden administration's proposed enforcement priorities go into effect, most of that money will just go to waste.
In addition, non-enforcement will create a powerful magnet that will draw aliens to enter the United States illegally, and hold those aliens already here unlawfully firmly in place. Absent significant enforcement efforts at the border, what my colleague Todd Bensman has described as the "Biden Effect" — with waves of migrants entering illegally — will occur. Fifty Members of Congress have already written to DHS on February 9 about "the rising illegal migration crisis beginning at our southern border".
Low-wage workers will suffer the most from these policies (for reasons I explained in a January 18 post), as they see the labor market swamped with new workers, and their pay drop.
In a February 10 speech, Federal Reserve Board Chairman Jerome Powell stated that the actual unemployment rate in this country was "close to 10 percent in January", and explained that "achieving and sustaining maximum employment ... will require a society-wide commitment." It does not appear that DHS consulted with Chairman Powell in promulgating the Pekoske memo or its proposed immigration-enforcement guidance.
Finally, communities will be less safe, as they must deal with criminal aliens — some convicted of the most heinous of offenses — being returned to the streets instead of being removed.
Obama-era policies, and in particular the Johnson memo, set a dangerous precedent for the non-enforcement of the immigration laws of the United States in the name of prioritizing scarce ICE resources. The Pekoske memo and ICE's proposed guidance are much, much worse.