Interim Guidance-Civil Immigration Enforcement and Removal Policies

by David H. Nachman, Esq.

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enforcement policies, established interim enforcement priorities, instituted a 100-day pause on certain removals, and rescinded several existing policies.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.

Prosecutorial Discretion

The Office of Principal Legal Advisors (OPLA) attorneys may exercise prosecutorial discretion, in accordance with the above-listed priorities as well as relevant aggravating and mitigating factors. Prosecutorial Discretion is helpful in making determinations with regard to Immigration Court procedures. OPLA attorneys have the authority, under prosecutorial discretion, to terminate, administratively close, or continue Immigration Court proceedings, depending upon the specific facts and circumstances of the case.

Further, the memorandum explains that cases that generally merit dismissal, in the absence of aggravating factors, include those who are military service members, or relatives thereof, those likely to be granted temporary or permanent relief, those with compelling humanitarian factors, those with significant law enforcement or other governmental interest, and long-term permanent residents. Prosecutorial discretion is also used in Motions to Reopen and Bond Proceedings with the Immigration Court.

The guidance regarding prosecutorial discretion will allow for movement of cases within the Immigration Courts and will provide individuals in Removal Proceedings with additional opportunities for advancing their cases. 

If you should have any questions or need more information about the ways in which the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing us at info@visaserve.com or by calling us at 201-670-0006 (x104). You can also visit our Law Firm’s website at www.visaserve.com


About The Author

David H. Nachman, Esq. is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assists clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.


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