On January 20, 2021, President Biden issued an executive order terminating the harsh enforcement priority system established by President Trump and directed relevant agencies to revise the immigration enforcement guidelines and policy consistent with the executive order. Thereto, ICE issued a memo setting forth an interim immigration enforcement policy to remain in effect until Secretary Mayorkas issues new enforcement guidelines.
Pursuant to the ICE memo, non-citizens who are prioritized for removal, including arrest and initiation of removal proceedings, are:
Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
Individuals apprehended at the border or port of entry while attempting to unlawfully enter the United States on or after November 1, 2020 or who were not physically present in the United States in the United States before November 1, 2020.
Individuals deemed to pose a threat to public safety and who: (a) have been convicted of an “aggravated felony”; (b) have been convicted of an offense for which an element was active participation in a criminal street gang; or (c) are 16 years or older and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.
However, the memo makes clear that enforcement against non-citizens not falling within the above priorities is not prohibited and ICE officials still have discretion in enforcement. In using such discretion, ICE officials have been directed to consider all relevant facts and circumstances, including prior criminal convictions and the seriousness and recency of such convictions. Therefore, any noncitizen who is subject to removal from the United States, even if not a priority for enforcement under the interim policy, could still be subject to enforcement, a risk that can increase with criminal arrests or convictions.
Biden’s Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/