Unpublished ICE Memo Allows Arrests of Non‐​Criminal Immigrants Who Trump Did Not Prioritize

A new document received by ProPublica under a Freedom of Information Act request demonstrates that the U.S. Immigration and Customs Enforcement (ICE) has adopted a policy that conflicts with both President Trump’s executive order (EO) and public Department of Homeland Security (DHS) guidelines on immigration enforcement. I commented for the story, which you can read here.

The bottom line is that the memo shows that for months, ICE has been requiring agents to arrest all unauthorized immigrants whom they “encounter,” regardless of whether they are otherwise priorities for removal. Previously, ICE had admitted that it sometimes arrests non-prioritized immigrants, but this memo goes much further, requiring them to do so in all cases. This directly contradicts President Trump’s statements about targeting criminal aliens, the text of his EO which creates priorities for removal, and Secretary John Kelly’s department-wide DHS memo that requires that agents be able to retain their discretion over arrests and mandates that they follow the department’s removal priorities when arresting people that they “encounter.” 

President Trump executive order creates prioritization of immigrants for removal. 

Here’s the background. On January 25, President Trump issued Executive Order 13768, “Executive Order: Enhancing Public Safety in the Interior of the United States.” The EO stated, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.” But it then gave this statement effect by rescinding DHS’s Obama-era immigration enforcement priorities from November 2014 and creating new, much broader ones.

Sec. 5.  Enforcement Priorities.  In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security shall prioritize for removal those aliens described by the Congress in sections 212(a)(2) [various criminal convictions], (a)(3) [security concerns], and (a)(6)(C) [immigration fraud], 235 [people caught while crossing illegally], and 237(a)(2) [various criminal convictions] and (4) [security concerns] of the INA as well as removable aliens who:
(a)  Have been convicted of any criminal offense;
(b)  Have been charged with any criminal offense, where such charge has not been resolved;
(c)  Have committed acts that constitute a chargeable criminal offense;
(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e)  Have abused any program related to receipt of public benefits;
(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

These categories are already very broad and could include up to three quarters of all unauthorized immigrants. Nonetheless, they do provide some guidance for officers on who to target for arrest. Under the Trump EO, no one is “exempt” from potential removal, but officers are instructed to use their discretion to focus on those who fit these priorities. Notably absent from this list: every unauthorized immigrant “encountered” by an ICE officer. On February 20, DHS Secretary Kelly publicly signed a memo that spelled out how his department should implement the EO, stating in relevant part:

Thus, in the DHS memo, officers are allowed—i.e. “may”—initiate enforcement actions against removable aliens that they “encounter” but they “should act consistently with the President’s enforcement priorities” and “shall prioritize” those aliens. It also states that the ICE Director may “issue further guidance to allocate appropriate resources to prioritize enforcement activities within these categories—for example, by prioritizing enforcement activities against removable aliens who are convicted felons or who are involved in gang activity or drug trafficking.” Secretary Kelly has interpreted his memo to mean, "just because you're in the United States illegally doesn't necessarily get you targeted. It's gotta be something else."

ICE memo ignores President Trump's priorities for removal

However, on February 21, ICE Executive Assistant Director Matthew Albence, who heads up Enforcement and Removal Operations (ERO), quickly issued the above-mentioned memo that claims to implement his agency’s portions of the Trump executive order as well as Secretary Kelly’s memo to the whole department. The relevant portion of that memo reads:

Here ICE has taken the DHS-wide memo and—rather than narrowing it to certain specific categories within the priorities as Secretary Kelly suggested—clearly goes far beyond it, even to the point of violating it. First, by requiring that agents take enforcement actions against anyone they “encounter,” it violates the DHS-wide guideline to not “remove the individual, case-by-case decisions of immigration officers.” Second, it violates the memo and the Trump EO by prioritizing for removal those individuals that the agents “encounter,” above those specifically listed in the Trump EO and DHS memo.

The ICE memo does mention the prioritization but only applies it to detention decisions and “efforts to remove.” How can ICE claim that its “efforts to remove” are targeted against prioritized aliens while also requiring ICE agents to arrest all that they “encounter”? It appears to me that ICE has adopted the view that priorities only apply to its investigations and targeted operations—i.e. “efforts”—while it is free to arrest anyone whom they encounter during those “efforts.” This explains reports of immigrants being arrested who appear to fall outside DHS’s priorities.

In its justification of the memo for the story, ICE claims that "ICE prioritizes the arrest and removal of national security and public safety threats; however, no class or category of alien in the United States is exempt from arrest or removal.” This is a complete non-answer. A category may not be "exempt" from potential arrest, while still being de-prioritized relative to other categories. That is what the memo and EO instruct. Instead, it makes arrests of non-prioritized aliens mandatory if encountered by ICE agents.

ICE is simply creating its own priorities that contradict the secretary’s, yet Congress entrusted the secretary with the responsibility of “establishing national immigration enforcement policies and priorities.” Nothing in the memo delegates to ICE the authority to create new priorities. Indeed, it does just the opposite, instructing ICE to follow the priorities and allowing it only to promulgate memos that narrow the focus of the priorities.

Congress has also advised DHS to prioritize criminal immigrants in recent years. In every Homeland Security appropriations since 2008, the House appropriations committee has stated that the DHS “Secretary shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” In 2015 and 2016, this language was enacted into law. Unfortunately, likely due to the fact that Congress has avoided regular appropriations process, it was not enacted for 2017, but it is a part of the Committee-passed DHS appropriations bill for 2017 and likely will be again in 2018.

In any case, ICE’s practice simply cannot be squared with the public DHS memo or the Trump EO. The memo proves that the agency wants to have as few limits as possible on its authority, and it believes that no one in the White House or in DHS will stop them, even when it ignores their orders. This effect is not new to the Trump administration. ICE flouted the executive actions of President Obama as well. It is new, however, to see that the agency is spelling out its defiance in written instructions to its agents. This makes sense given that the agency’s performance metrics are mainly the quantity of removals, not the quality of removals.

The agency’s defenders will likely claim that it is just “enforcing the law,” but in no other sphere of law do we consider prioritization a failure to enforce the law. We take stock of the seriousness of the offense and allocate resources accordingly. Non-prioritization implies that ICE should spend equal time and resources on arresting non-criminal mothers with U.S. citizen kids as it does on serious violent offenders. That’s not just inhumane. It’s dangerous.