New Guidelines for Deportation Priorities and Discretion in the US

The Supreme Court Rejects Texas and Louisiana’s Immigration Challenge

The ruling scuttled the aspirations of Texas and Louisiana, both governed by Republicans who claimed that the government had violated immigration law and demanded the detention and deportation of all undocumented immigrants.

States Cannot Challenge Federal Immigration Decisions, Supreme Court Rules

The highest court of justice was categorical, 8 to 1, pointing out that the states do not have the “power” to challenge decisions of the federal government, especially when it comes to federal issues such as the application or enforcement of federal immigration law from the United States.

Deportation Priorities Take Full Effect Following Supreme Court Ruling

Following the ruling, the deportation priorities reiterated at the end of September 2022 take full effect.

Deportation Priority Guide Released by Department of Homeland Security

On September 30, 2022, the Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, published a deportation priority guide to the directors of dependencies under his command. These are his keys.

Primary Key to Deportation Priorities

Being undocumented in the United States is not grounds for immediate deportation, but federal immigration agents have broad discretion to detain, arrest, and expel an undocumented immigrant, the document states.

Deportation Priorities Established by President Biden

The priorities are not new, they were established in February 2021 after President Biden reversed a series of regulations that were part of former President Donald Trump’s ‘zero tolerance’ policy. One of them established that the undocumented presence constituted a threat to the public and national security of the United States.

Controversy Over Terminology: Undocumented vs. Illegal Alien

Biden even went further. He not only annulled the priorities that the previous government had determined, but he stopped using the term illegal alien to refer to the undocumented and began calling them “non-citizens.”

Deportation Priorities

• Threat to national security. A non-citizen involved in or suspected of terrorism or espionage, or related to terrorism or espionage-related activities, or who poses a danger to national security.
• Threat to public safety. A non-citizen who poses a real threat to public safety, usually due to a serious crime.
• Threat to border security. A non-citizen who poses a threat to border security.

Key Date: November 1, 2020

The Mayorkas memo adds that a non-citizen (alien) becomes a threat to border security if:

• You are detained at the border or port of entry while trying to enter the United States illegally.
• He is detained in the United States after having entered illegally after the November 1, 2020. This date is key to understanding the government’s deportation priorities.

Prosecutorial Discretion

While being undocumented is not an immediate or sole cause of removal from the United States, the 2022 memorandum recalls a fundamental principle governing the authority of federal immigration agents: “the exercise of prosecutorial discretion.”

Undocumented Population in the United States

The 2022 memo notes that there are 11 million undocumented or removable (deportable) people from the United States.

Official Recognition of Undocumented Non-Citizens

“In exercising our discretion, we are guided by the fact that most undocumented non-citizens, who could be subject to removal, have been contributing members of our communities for years,” the Mayorkas memo adds.

Factors Considered in Deportation Cases

Among the aggravating factors that justify deportation are considered, among others:

• Gravity of the crime, conviction, and sentence imposed.
• The nature and degree of damage caused by the offense.
• Use or threatened use of a firearm or dangerous weapon.
• Serious criminal record.

Mitigating Factors in Deportation Cases

However, there may also be factors that mitigate deportation priority. Between them:

• Age of the non-citizen (advanced or if it is a minor).
• Prolonged physical presence in the United States.
• A mental condition that may have contributed to the criminal conduct, or a physical condition or mental condition that requires care or treatment.
• Status of victim of a crime or victim, witness or party in a judicial process.
• The impact of deportation on the family in the United States, such as the loss of a provider or caregiver.
• Whether the non-citizen may be eligible for humanitarian protection or other types of immigration relief.
• Military or other public service of the non-citizen or his immediate family.
• Time elapsed since an infraction and evidence of rehabilitation.
• Whether the conviction was vacated or expunged.
• During the Trump administration, the mere fact of being accused of a crime constituted a deportation priority. Even if the case had not yet been sentenced.

Complexity of Exercising Prosecutorial Discretion

Mayorkas wrote in the memo that deciding how to exercise prosecutorial discretion “can be complicated and requires investigative work.”

Respecting Civil Rights and Liberties

The discretion of federal agents is also aimed at respecting the civil rights and liberties of non-citizens.

It specifies that race, religion, gender, sexual orientation or gender identity, national origin, or political associations will never be factors in the decision to take enforcement actions.