A Brief History of Immigration Enforcement Guidelines and Restrictions

President-elect Donald Trump made increased immigration enforcement — both at the border and in the interior of the United States — a key point¹ of his 2024 election campaign. To understand how the 47^th president can make good on those promises, it’s crucial to understand how so-called “priorities” and “guidelines” have been used to hobble Immigration and Customs Enforcement (ICE) officers and Border Patrol agents in their attempts to enforce the immigration laws. 

What follows is a brief history of such non-enforcement “enforcement guidance”, going back five administrations.

Meissner Memo of November 17, 2000

For most of the time immigration laws have been enforced in the United States, ICE — and its predecessor the Immigration and Naturalization Service (INS) — arrested, detained, and removed aliens who were excludable, deportable, or removable, without any particular focus on their own equities or whether they were criminals or not.

That changed, to a degree, on November 17, 2000, when then-INS Commissioner Doris Meissner issued a memo captioned “Exercising Prosecutorial Discretion”² (Meissner memo).

Note that the Meissner memo was issued 10 days after the 2000 presidential election between Republican George W. Bush and Democrat Al Gore, but 24 days before the Supreme Court issued its opinion in Bush v. Gore,³ which essentially decided the election in Bush’s favor. It was also issued shortly before Meissner resigned as commissioner. 

Unlike the guidance that followed, the Meissner memo did not attempt to limit the categories of cases involving removable aliens who could be placed into removal proceedings, detained, or removed. 

Instead, it set forth a list of criteria that agents and officers of the then-INS could consider when determining whether or not to place those aliens into proceedings, detain them, and deport them.

Interestingly, Meissner tacitly blamed Congress for having to issue that memo at all. It begins:

Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and exercise of the [INS] prosecutorial discretion.⁴

The “1996 amendments” referenced were included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)⁵, which limited the authority of immigration judges to grant various forms of immigration “relief” to aliens illegally present in the United States, most notably “suspension of deportation”⁶ (suspension). 

To be granted suspension, aliens had to establish that they had been continuously present in the United States for at least seven years, had “good moral character”⁷ during that period, and that deportation would result in “extreme hardship” to either themselves or a spouse or child who is either a U.S. citizen or lawful permanent resident.⁸

To say that this “extreme hardship” standard for suspension had been weakened over the years before that relief was repealed would be an understatement. 

In its 1996 decision in Matter of O-J-O-⁹, for example, the Board of Immigration Appeals (BIA) granted suspension to a single and childless 24-year-old Nicaraguan national who, among other equities was “an avid fan of softball and baseball” and “participate[d] as a player in local softball and baseball leagues”.¹⁰

In its conference report for IIRIRA¹¹, Congress specifically referenced the BIA’s “hardship” finding in Matter of O-J-O- to explain why it was replacing suspension with a new form of relief, “cancellation of removal and adjustment of status for certain nonpermanent residents” (42B cancellation) in section 240A(b) of the INA.¹²

The new 42B cancellation required that applicants be physically present for at least 10 years, have good moral character during that period, and most importantly, that they demonstrate “exceptional and extremely unusual hardship” to a U.S. citizen or lawful permanent resident spouse or child to be granted relief.

Moreover, to ensure courts did not also water down that hardship standard, Congress limited the number of 42B cancellation grants to 4,000 per year.¹³

Notwithstanding this clear congressional directive, Meissner adopted many of the same factors the BIA considered in deciding whether to grant suspension in her prosecutorial discretion memo, including “length of residence”, “humanitarian concerns”, “immigration history”, and “community attention”.¹⁴

Unlike suspension, however, Meissner’s memo also addressed the use of prosecutorial discretion for lawful permanent aliens who were removable on criminal and other grounds, again to address relief¹⁵ Congress had eliminated in IIRIRA.

Morton Memo of March 2, 2011

All that said, the Meissner memo did not have much impact on immigration enforcement, given her departure from the INS, the onset of the new Bush administration, and the terror attacks of September 11, 2001, which triggered increased attention to immigration enforcement. 

Agents and officers continued to take enforcement action largely without restriction, even though the Meissner memo still technically remained in effect.

That changed, however, on March 2, 2011, when then-Immigration and Customs Enforcement (ICE) Director John Morton issued a memorandum captioned “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”¹⁶ (the Morton memo).

Morton contended in that memo that ICE only had the resources to remove 4 percent (400,000) of the aliens illegally present in the United States¹⁷, 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.¹⁸ Criminal aliens were included, as well, “with a particular emphasis on violent criminals, felons, and repeat offenders”.¹⁹

Participants in organized criminal gangs aged 16 and above 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:²⁰ Level 1 was for aliens convicted of “aggravated felonies” as defined in section 101(a)(43) of the INA²¹, 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.²² 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’”. 

The third priority consisted of fugitive aliens (i.e., aliens ordered removed who failed to depart), illegal re-entrants, and others who had “obstruct[ed] immigration controls”.²³

Fugitive aliens and those who had reentered illegally fell into sub-priorities, more or less reflecting priorities one and two therein, with non-criminal fugitives and reentrants the lowest. Aliens who were admitted or gained immigration benefits via fraud rounded out the list.

Notably, the Morton memo 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.”²⁴ The priorities still took precedence, however, although headquarters approval was not required for action in non-priority cases.

Following the issuance of the Morton memo, ICE removals fell from 409,849 in FY 2012 to 315,943 in FY 2014²⁵ — a 23 percent decrease. More importantly, however, ICE interior removals fell from 180,970 in FY 2012²⁶ 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 on November 20, 2014, pursuant to a memo issued by then-DHS Secretary Jeh Johnson, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants”²⁷ (the Jeh Johnson memo).

The Jeh Johnson memo pared down the enforcement priorities in the Morton memo, applying its own three priorities. Those priorities applied not only to ICE, but to U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS), as well.

Again, Priority 1 began with national security threats, followed by aliens apprehended entering illegally and at the ports, gang members (with fairly significant restrictions), and aliens with aggravated felonies and non-immigration-related felonies.²⁸

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 priority²⁹ 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”.

Next³⁰ were aliens convicted of what the 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 3³¹ for enforcement related to aliens ordered removed on or after January 1, 2014. Although those aliens had received due process, the Jeh 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 opt-outs to enforcement for Priority 3 aliens who were eligible for relief (which they logically would have applied for and been denied already), and those who were “not a threat to the integrity of the immigration system”. Unlike in the case of Priority 2 aliens, though, that decision could be made by a street- or desk-level official.

Similar to the Morton memo, the Jeh 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.”³²

But, unlike under the Morton memo, the Jeh Johnson memo made clear that such determinations required ICE field-level (but not HQ) concurrence.

The Jeh Johnson memo drastically affected immigration enforcement. 

ICE interior removals fell from 102,224 in FY 2014³³ to 69,478 in FY 2015 — a 32-percent decrease. They fell again in FY 2016³⁴, to 65,332. Total removals (including aliens apprehended at the border) that year were 201,020³⁵ — just more than half of the 400,000 Morton had asserted ICE could achieve.

EO 13768 of January 25, 2017

The then-incoming Trump administration scrapped the Jeh Johnson memo, but did not return to the status quo before the Morton memo. Rather, the new president crafted his own immigration enforcement priorities in a January 25, 2017, executive order, EO 13768, “Enhancing Public Safety in the Interior of the United States”.³⁶

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 been convicted of crimes.³⁷

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 under final orders of removal but who had failed to depart the United States, as well as aliens who posed a risk to national security or public safety, were also prioritized.

Aliens removable strictly on immigration violations status were not specifically prioritized, but nothing in that EO prevented ICE from arresting, detaining, or removing those aliens.

Between FY 2017 and FY 2020, ICE removed 935,346 aliens, 65 percent of whom had criminal arrests or convictions.³⁸

Most of the remaining 35 percent of non-criminal removals involved aliens encountered at the border, but in every fiscal year under the Trump administration, more than 89 percent of interior removals involved aliens with criminal convictions or facing criminal charges.

The Inauguration Day 2021 Pekoske Memo

Shortly after President Biden was sworn in on January 20, 2021, Acting DHS Secretary David Pekoske issued a memo captioned “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities”³⁹ (Pekoske memo). 

The Pekoske memo announced a review of immigration-enforcement policies, as well as a 100-day hold on almost all removals from the United States (the latter quickly blocked⁴⁰ by a federal judge).

Citing, once again, “limited resources”, the Pekoske memo restricted immigration enforcement to three specified “priorities”: spies, terrorists, and other threats to national security; aliens who entered illegally on or after November 1, 2020; and aliens convicted of aggravated felonies (again, as defined in section 101(a)(43) of the INA).⁴¹

Unlike its Obama-era predecessors, however, under the Pekoske memo, only aliens convicted of aggravated felonies and released after the date of that memo, and who were “determined pose a threat to public safety”, were subject to arrest, detention, and prosecution.

In defining certain crimes as aggravated felonies, Congress has already determined that aliens convicted of those crimes “pose a threat to public safety” and already mandated their detention and prosecution. Nonetheless, the factors governing which aggravated felonies qualified as priorities were unclear from that memo.

Tae Johnson Memo of February 18, 2021

By its terms, the Pekoske memo was a placeholder until other enforcement guidelines were issued by DHS. Consequently, on February 18, 2021, then-Acting ICE Director Tae Johnson issued a new guidance memo, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”⁴² (Tae Johnson memo).

The Tae Johnson memo slightly expanded the class of aliens deemed priorities for ICE enforcement under the Pekoske memo.

Threats to national security and border security were still priorities, but the Tae Johnson memo also included non-detained aggravated felons and certain gang members, provided they “pose[] a risk to public safety”⁴³ (though it is hard to imagine many who don’t).

State of Texas v. U.S. 

The Pekoske and Tae Johnson memos were challenged by the states of Texas and Louisiana in a case captioned State of Texas v. U.S.⁴⁴

U.S. District Court Judge Drew Tipton was assigned to the case, and on August 19, he issued an order⁴⁵ enjoining the restrictions in the Pekoske and Tae Johnson memos on immigration agents in their enforcement of the immigration laws against criminal aliens.

A month later, however, a three-judge panel of the Fifth Circuit limited the scope of that injunction.⁴⁶

In its decision, the Fifth Circuit panel noted⁴⁷ that new guidance would be issued by the end of September by DHS. That’s when things got interesting, because the states sought a rehearing of that decision before all 17 judges of the Fifth Circuit as a whole (en banc).

On November 30, 2021, the en banc panel of the Fifth Circuit granted the states’ request, vacating the limitations the three-judge circuit panel had placed on Judge Tipton’s original injunction.⁴⁸

Secretary Mayorkas’s September 30, 2021, “Guidelines for the Enforcement of Civil Immigration Law”

By that point, however, DHS had issued new immigration enforcement guidance. 

Specifically, on September 30, 2021, DHS Secretary Alejandro Mayorkas issued a memo captioned “Guidelines for the Enforcement of Civil Immigration Law”⁴⁹ (Mayorkas memo), which again placed restrictions on the ability of ICE officers and attorneys in the investigation, arrest, detention, prosecution, and deportation of removable aliens (collectively “enforcement action”).

Relying on what the memo described as DHS’s “prosecutorial discretion”, the Mayorkas memo directed ICE officers and attorneys to consider certain “aggravating” and “mitigating” factors before taking any enforcement action, with limited exceptions.⁵⁰

The aggravating factors are general and objective, relating to aliens’ criminal offenses and prior criminal history. 

The mitigating factors, on the other hand, are more individualized and subjective, having to do with the alien’s age, health, eligibility for relief from removal, and — interestingly — whether any of the alien’s family members were in the military or worked for the government.

Among the issues with those guidelines is that they contravene two provisions of the INA mandating the detention of certain criminal aliens. 

First, section 236(c) of the INA⁵¹ states DHS “shall take into custody” an alien removable on most criminal grounds “when the alien is released”.

Similarly, section 241(a) of the INA⁵² requires DHS to take aliens ordered removed into custody during the 90-day removal period; paragraph (2) therein states, “Under no circumstance during the removal period shall [DHS] release an alien who has been found” removable on any of the criminal grounds of removability.

Back to State of Texas v. U.S.

Because the Mayorkas guidelines frustrate those detention mandates, the plaintiff states in State of Texas v. U.S. filed an amended complaint with the district court to set them aside.⁵³

In June 2022, Judge Tipton issued a Memorandum Opinion and Order enjoining the Mayorkas memo.⁵⁴ That injunction eventually made its way to the Supreme Court, where in June 2023 a majority of justices held that the states lacked standing to bring the case.⁵⁵

In essence, the majority held there is no precedent for a plaintiff — even a state — to request that a third-party (here, any criminal alien) be prosecuted on either criminal or immigration grounds.

Justice Alito, in dissent, found: 

In order to reach this conclusion, the Court . . . holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare—withholding funds, impeachment and removal, etc. I would not blaze this unfortunate trail.⁵⁶

Kerry Doyle Memo of April 3, 2022

While this litigation was playing out, on April 3, 2022, Kerry Doyle — ICE Principal Legal Advisor (PLA) and head of the agency’s Office of the Principal Legal Advisor (OPLA), the cadre of lawyers who represent the United States in immigration court — issued a memo titled “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion”⁵⁷ (Doyle memo).

The purpose of the Doyle memo was “to guide” OPLA attorneys “in appropriately executing DHS’s enforcement priorities and exercising prosecutorial discretion”⁵⁸ under the Mayorkas memo, and it apparently remained in effect even while the Mayorkas memo was enjoined. 

Among other things, the Doyle Memo says ICE attorneys are expected “to use their professional judgment to do justice in each case, whether the decision relates to: filing an NTA; moving to dismiss, administratively close, or continue proceedings; stipulating to issues, relief, or bond; or pursuing an appeal”.⁵⁹

On October 24, 2024, the House Judiciary Committee issued an interim staff report⁶⁰, which included the following findings: 

• Under the Biden-Harris Administration, more than 700,000 illegal aliens have had their cases dismissed, terminated, or administratively closed, allowing those aliens to stay in the country indefinitely without facing immigration consequences.
• For asylum decisions, the Executive Office for Immigration Review (EOIR), which houses the nation’s immigration courts, reported 109,089 cases as “not adjudicated” in fiscal year 2023, meaning that those cases were deemed “completed” but were largely terminated or dismissed and not adjudicated on the merits of the underlying claim.
• Through the first nine months of fiscal year 2024, the number of non-adjudicated asylum cases already eclipsed the 2023 record, with 109,568 asylum cases not adjudicated. By comparison, only 12,960 total asylum cases were reported as “not adjudicated” from fiscal year 2017 through fiscal year 2020 combined.
• [DHS] failed to file the necessary documentation to begin immigration court removal proceedings in roughly 200,000 additional cases, meaning that the overwhelming majority of those aliens can also remain in the U.S. indefinitely.

• An immigration court official admitted to the Committee and Subcommittee that decisions by the Biden-Harris DHS, such as DHS attorneys not appearing at scheduled hearings and DHS failing to file proper paperwork with the courts, waste the immigration courts’ time and resources and decrease efficiency.⁶¹

The report largely blamed the Doyle memo for what it termed a “quiet amnesty” for those aliens whose cases were “dismissed, terminated, or administratively closed”, explaining: 

The Doyle Memo outlined how ICE attorneys “are expected to exercise discretion”—that is, move to dismiss immigration cases— “at all stages of the enforcement process.” In other words, ICE attorneys are expected to ensure that certain aliens’ cases never move forward in immigration court . . .⁶²

The Factual and Legal Bases for the Mayorkas Memo

As noted, like many of his predecessors, Secretary Mayorkas defended the enforcement restrictions in his September 2021 memo under the guise of prosecutorial discretion, the principle that law-enforcement officials have the inherent authority to not enforce the law. 

In support of that point, DHS explained in a separate memo⁶³ implementing those guidelines: 

On his first day in office, President Biden affirmed that “advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government." In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration's stated commitment to “advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” [Footnotes omitted.] 

In other words, the Biden administration’s DHS secretary equated immigration enforcement under the laws passed by Congress and codified in the INA with the worst instances of discrimination in our nation’s past.

Impact of the Biden-Harris Administration’s Enforcement Restrictions

The Center has compared ICE criminal alien data under the three pre-Covid years of the Trump administration (FY 2017 to 2019) and the first three years of the Biden administration (FY 2021 to 2023) to assess the impact of the administration’s various enforcement guidance memos.⁶⁴

We found that arrests of criminal aliens had declined 57 percent, that there was a 67 percent decrease in deportations of criminal aliens, and that ICE detainers of criminal aliens fell 44 percent during the Biden-Harris years.

That decline in arrests covered every crime category identified by ICE and included a 63-percent decrease with respect to larcenies, 55 percent for burglaries, a 48-percent drop in assault cases, a 47-percent decline in burglary cases, and a 34-percent drop in aliens with kidnapping records. 

As an aside, it should be noted the Mayorkas memo asserts — without reference or citation — that “a categorical determination that a domestic violence offense compels apprehension and removal could make victims of domestic violence more reluctant to report the offense conduct”.⁶⁵

That’s notable because under the Jeh Johnson memo, alien domestic violence offenders were a priority for enforcement,⁶⁶ which is sensible given that the CDC has found that “over half of female homicide victims in the U.S. are killed by a current or former male intimate partner”.⁶⁷

In any event, the chart⁶⁸ below compares ICE interior removals by criminality over the 11-year period from FY 2013 (in the middle of the Obama administration) to FY 2023 (the third partial year of the Biden administration):

ICE Interior Removals by Criminality and Fiscal Year

Sources: ICE Annual Report, Fiscal Year 2023; ICE Annual Report, Fiscal Year 2022; U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report; Fiscal Year 2017 ICE Enforcement and Removal Operations Report; ICE Enforcement and Removal Operations Report, Fiscal Year 2014.

Summary

Given the millions of inadmissible applicants for removal who have been released into the United States under the Biden administration, ICE will have its hands full finding, detaining, prosecuting, and deporting removable aliens from the United States. 

Congress will almost definitely be required to fund additional resources—ICE officers, agents, attorneys, and detention space—to carry out that task, but history shows that the biggest impediment to immigration enforcement has been political restrictions placed on the agency, not the capabilities of its employees.

As U.S. District Court Judge Alia Moses explained in her November 29, 2023, Memorandum Opinion and Order in Texas v. U.S. DHS⁶⁹:

The U.S.-Mexico border presents a unique challenge that is equal parts puzzling to outsiders and frustrating to locals. The immigration system at the heart of it all, dysfunctional and flawed as it is, would work if properly implemented. Instead, the status quo is a harmful mixture of political rancor, ego, and economic and geopolitical realities that serves no one. So destructive is its nature that the nation cannot help but be transfixed by, but simultaneously unable to correct, the present condition. [Emphasis added.]

It is well past time that elected officials allowed the “immigration system” to be properly implemented, as Judge Moses suggests.