This new ICE memorandum dated September 30, 2021, provides guidance for the apprehension and removal of noncitizens.

From the memo:

Threat to National Security

A noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security, is a priority for apprehension and removal.

Threat to Public Safety

A noncitizen who poses a current threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal.

Whether a noncitizen poses a current threat to public safety is not to be determined according to bright lines or categories. It instead requires an assessment of the individual and the totality of the facts and circumstances.

There can be aggravating factors that militate in favor of enforcement action. Such factors can include, for example:
  • the gravity of the offense of conviction and the sentence imposed;
  • the nature and degree of harm caused by the criminal offense;
  • the sophistication of the criminal offense;
  • use or threatened use of a firearm or dangerous weapon;
  • a serious prior criminal record.

Conversely, there can be mitigating factors that militate in favor of declining enforcement action. Such factors can include, for example:
  • advanced or tender age;
  • lengthy presence in the United States;
  • a mental condition that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment;
  • status as a victim of crime or victim, witness, or party in legal proceedings;
  • the impact of removal on family in the United States, such as loss of provider or caregiver;
  • whether the noncitizen may be eligible for humanitarian protection or other immigration relief;
  • military or other public service of the noncitizen or their immediate family;
  • time since an offense and evidence of rehabilitation;
  • conviction was vacated or expunged.
The above examples of aggravating and mitigating factors are not exhaustive. The circumstances under which an offense was committed could, for example, be an aggravating or mitigating factor depending on the facts. The broader public interest is also material in determining whether to take enforcement action. For example, 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. The specific facts of a case should be determinative.

Again, our personnel must evaluate the individual and the totality of the facts and circumstances and exercise their judgment accordingly. The overriding question is whether the noncitizen poses a current threat to public safety. Some of the factors relevant to making the determination are identified above.

The decision how to exercise prosecutorial discretion can be complicated and requires investigative work. Our personnel should not rely on the fact of conviction or the result of a database search alone. Rather, our personnel should, to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue. The gravity of an apprehension and removal on a noncitizen's life, and potentially the life of family members and the community, warrants the dedication of investigative and evaluative effort.

Threat to Border Security

A noncitizen who poses a threat to border security is a priority for apprehension and removal. A noncitizen is a threat to border security if:
  1. they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or
  2. they are apprehended in the United States after unlawfully entering after November 1, 2020.
There could be other border security cases that present compelling facts that warrant enforcement action. In each case, there could be mitigating or extenuating facts and circumstances that militate in favor of declining enforcement action. Our personnel should evaluate the totality of the facts and circumstances and exercise their judgment accordingly.


Link for the entire memo: https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf