Biden Admin to ICE: Being in the U.S. Without Documentation 'Should Not Alone Be the Basis' for Deportation

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A U.S. border patrol agent in a green uniform stands over a group of migrants, who rest in the sand holding gallon jugs of water.
Migrants are apprehended by U.S. Customs and Border Protection (CBP) agents in La Joya, Texas, on June 12, 2021. (Nicolo Filippo Rosso/Bloomberg via Getty Images)

The Biden administration has unveiled new guidelines this week for federal immigration enforcement that prioritize the most urgent threats to public safety, while still leaving discretion in the hands of individual officers and agents.

"What we have done is we have guided our workforce to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security," Homeland Security Secretary Alejandro Mayorkas told NPR.

Under the new guidance, outlined in a memo from Mayorkas to U.S. Immigration and Customs Enforcement and other agencies, simply being present in the U.S. without legal authorization "should not alone be the basis" for immigration authorities to arrest or deport someone.

For many, ICE became the de facto face of former President Donald Trump's immigration crackdown, as agents were free to arrest anyone they encountered who was in the country illegally. With these new guidelines, the Biden administration is trying to distance itself from those policies.

It is an "incontrovertible fact," Mayorkas said, that "the majority of undocumented individuals ... have contributed so significantly to our communities across the country for years. They include individuals who have worked on the front lines in the battle against COVID, teach our children, do the backbreaking farm work to help deliver food to our table."

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But as with many of the Biden administration's immigration policies, the new rules were quickly attacked from all sides.

The guidelines "sit somewhere between lunacy and anarchy," said Jon Feere, a former ICE chief of staff during the Trump administration who is now at the Center for Immigration Studies in Washington, which advocates for lower levels of immigration.

"But smugglers and traffickers must be happy," he wrote in a tweet.

The new guidance largely mirrors the enforcement priorities laid out in interim guidance from the Biden administration earlier this year. But after criticism from Republicans and immigration hard-liners, the final guidance gives more leeway to individual ICE agents to make decisions about who is a threat to public safety.

Immigrant advocates worry that open-ended language could lead to abuse.

"This new guidance memo falls short of the Biden administration's commitments and promises to create a fair and humane immigration system," said Yaritza Mendez, with the pro-immigration advocacy group Make the Road New York.

"Left to use their own discretion, agencies like ICE have an alarming history of terrorizing, detaining and separating communities. We cannot continue to build on a system that inflicts harm on our immigrant communities," Mendez said in a statement.

But DHS Secretary Mayorkas pushed back on those concerns.

"Yes, it leaves discretion in the hands of the agents. But that discretion is guided. It is supervised. It is managed. It is overseen," Mayorkas told NPR.

He said ICE officers should look at a wide range of factors when deciding whom to arrest and deport — and that DHS would put safeguards in place to ensure that they do.

"We will hold ourselves accountable internally, and we will hold ourselves accountable to the public externally," he said.

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