Biden administration prepares new rules placing stricter enforcement parameters on ICE

US Immigration and Customs Enforcement is preparing to roll out new guidelines that would curtail enforcement measures, focusing more narrowly on immigrants who pose a national security, border security or public safety risk, according to draft interim guidance obtained by CNN.

The new guidance was prompted by an executive order signed by President Joe Biden shortly after taking office and marks a return to Obama-era immigration enforcement measures based on a priority system instead of the more aggressive approach taken under the Trump administration.

The draft memo establishes strict parameters for ICE officers, particularly in the event that an undocumented immigrant is encountered in the course of an enforcement operation, and appears intended to restrain an agency emboldened under the last administration.

CNN reached out to ICE for comment.

“The approval to carry out an enforcement action against a particular noncitizen will not authorize enforcement actions against other noncitizens encountered during an operation if those noncitizens fall outside the presumption criteria identified above,” the memo reads.

The memo also directs field offices to coordinate their operations and obtain pre-approval for enforcement and removal actions that don’t meet the criteria of priority cases. Those priorities are broken into three groups: national security, border security and public safety.

The national security category includes individuals who, for example, have engaged in or are suspected to be engaged in terrorism or terrorism-related activities or espionage, according to the memo.

The second priority group focuses on border security and includes people apprehended at the border or port of entry on or after November 1, 2020.

The public safety category, meanwhile, applies to those convicted of an aggravated felony or convicted of an offense that includes active participation in a criminal street gang or a transnational criminal organization, a term often used to describe drug cartels.

When evaluating whether a noncitizen poses a threat to public safety, the memo continues, “officers and agents are to consider the extensiveness, seriousness, and recency of the criminal activity.” That also includes considering personal and family circumstances, health and medical factors and ties to the community, among other factors.

To that end, the memo generally advises that officers take into account an individual’s situation, including, for example, whether they are reopening removal proceedings.

It also directs ICE to communicate to state and local authorities about enforcement operations. “The execution of an at-large enforcement action should be preceded by notification to the relevant state and local law enforcement agency or agencies,” the draft memo reads.

“This notification will advance public safety and help ensure that planned immigration enforcement actions are coordinated with any state and local law enforcement investigations and actions,” it continues.

The terminology used throughout the guidance is also notable, referring to undocumented immigrants as “noncitzens,” instead of “aliens.” US code currently defines “alien” as “any person not a citizen or national of the United States.” But Biden is trying to move away from that term, which has long been decried as a dehumanizing slur by immigrant rights advocates.

Biden’s immigration bill, set to be introduced Thursday, proposes removing the word “alien” from US immigration laws, replacing it with the term “noncitizen.”

Homeland Security Secretary Alejandro Mayorkas, the draft memo says, will issue new guidelines after consulting with leadership in the foreseeable future. In the interim, ICE leadership will provide weekly reports identifying enforcement actions, providing justification for the action and identifying the date, time and location of the action.

The administration’s new enforcement guidance is likely to face pushback. The administration has already faced a legal setback in its plan to pause deportations for 100 days.

The moratorium covered most deportations but excluded individuals who came to the US after November 1, are suspected of terrorism or espionage or pose a danger to national security, have waived rights to remain in the US or who’ve been determined removable by the acting director of ICE.

The move was immediately met with a lawsuit by Texas Attorney General Ken Paxton, who argued in part that a pause could harm the state. The moratorium has since been temporarily blocked by a federal judge in Texas.