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Unlawful Status Alone Should not be the Basis for an Enforcement Action Under New Guidelines

Posted by Hugo Valverde | Oct 17, 2021 | 0 Comments

Secretary of Homeland Security Alejandro Mayorkas has announced a new guideline to instruct U.S. Immigration and Customs Enforcement (ICE) agents on the priority of removal for noncitizens.

Effective November 29, 2021, the guidelines state that the enforcement of removal of undocumented noncitizens will be based on the threat the noncitizen has on public safety. 

In his Memorandum, Mayorkas states that there are over 11 million undocumented persons living in the United States, and the U.S. does not have the resources to remove them all. But more importantly than that, Mayorkas states the recognition of the U.S. government “that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways.”

Our important takeaway from Mayorkas' announcement? 

Mayorkas' assertion that “the fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”

Will the U.S. stop deportation of any undocumented person? 

No. But Secretary Mayorkas is putting discretion in the hands of ICE officers to prioritize deportation of people who fall into the following categories:

  1. Noncitizens who pose a threat to national security because they are engaged in or suspected of terrorism or espionage or related activities;
  2. Noncitizens who pose a current threat to public safety because of serious criminal conduct; and 
  3. Noncitizens who pose a threat to border security. 

An explanation of that last categorization clarifies that anyone who has entered the U.S. unlawfully after November 1, 2020 is considered a threat to border security. So this new DHS guidance is protective of lawfully abiding undocumented persons who have been in the United States long-term, but not those who have recently entered.

You may be wondering how this guidance will be interpreted by actual ICE officers on the ground. It leaves a lot to their discretion, but according to Mayorkas that discretion is “guided” and “supervised” and will involve continuous training. 

For now we will remain hopeful and watch and see how this new guidance is practically followed in the coming months. 

If you have questions about a pending USCIS petition or need help in determining whether you can do anything at the moment to obtain lawful immigration status, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.

About the Author

Hugo Valverde

Hugo's passion for immigration law stems from his own family's immigration experience. His father and mother came to the United States from Peru fleeing political persecution, and as he grew up, Hugo spent many summers in Peru. Hugo uses his experience growing up in an immigrant family and time a...


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