Immigrant Arrest Targets Left to Officers With Biden Memo Nixed

  • DHS says immigration officers will make case-by-case calls
  • Republican officials root for arrests; advocates fear cruelty

Bloomberg Government subscribers get the stories like this first. Act now and gain unlimited access to everything you need to know. Learn more.

US authorities enforcing federal immigration laws will spend the foreseeable future doing their jobs without clear guidance on who’s worth arresting.

A federal court scrapped the Biden administration’s immigration enforcement priorities, and the Supreme Court last week declined to revive the guidelines, at least for now. The justices will review the case later this year.

The 2021 policy under President Joe Biden directed US Immigration and Customs Enforcement officials to focus their limited resources on detaining and deporting immigrants who threaten public safety, national security, or border security. ICE routinely sets arrest priorities, while leaving some discretion to individual officers. Now, officers have more freedom to take in virtually anyone with an immigration-related offense.

Immigrants’ rights advocates fear a swell of aggressive and potentially cruel enforcement against immigrants who don’t pose any harm to the US.

The worst-case scenario is if officers “take the Supreme Court’s decision as license to begin engaging in arbitrary and terrorizing enforcement tactics,” National Immigrant Justice Center policy director Heidi Altman said. “It’s leadership’s responsibility to make sure that this doesn’t happen.”

Supreme Court Keeps Biden Border Enforcement Policy on Shelf

Photo: David Ryder/Getty Images
U.S. Immigration and Customs Enforcement detainees board a Swift Air charter flight at McCormick Air Center on Feb. 18, 2020, in Yakima, Wash.

Former enforcement officials think most officers will take a measured approach, but some concede the absence of a central policy will cause problems.

ICE is set to operate without detailed guidance from agency leaders well into next year. The Supreme Court will hear the case in December and likely issue a decision months later. Texas is leading the legal attack on the Biden policy.

Focus on Worst Offenders

The Department of Homeland Security attempted to offer reassurance after the Supreme Court setback last week, saying ICE officers would make decisions “informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.”

Most ICE officers will naturally focus on arresting dangerous individuals, even without an explicit mandate to do so, said Nixon Peabody LLP lawyer John Sandweg, who was a senior DHS official and acting director of ICE during the Obama administration. “Massive sweeps won’t be happening,” he said.

Trump-era ICE officials agreed, saying the former administration’s more expansive approach to immigration enforcement didn’t equate to indiscriminate arrests.

“We weren’t going to let criminals out to arrest some old lady who’s been here for 10 years,” said Ronald Vitiello, who was acting head of ICE during part of President Donald Trump’s administration.

Getting rid of the Biden guidance should result in increased arrests and deportations, said Tom Homan, who led the agency early in Trump’s term and is a visiting fellow at the conservative Heritage Foundation.

That’s exactly what worries some advocates. “If local officers are just left to their own devices, you’re going to have some officers who still focus on important priorities, and others who just arrest whoever they come into contact with,” said Kerri Talbot, deputy director for the advocacy group Immigration Hub.

The lack of central guidance will also create inconsistencies in enforcement and hamstring the Biden administration’s effort to take a strategic approach, she said.

ICE officials, in an enforcement report earlier this year, touted a higher percentage of arrests of aggravated felons monthly since President Joe Biden took office, compared to the numbers arrested during both the Trump administration and the last year of the Obama administration.

‘Serious’ Criminals Take Priority in Immigrant Deportation Plan

DHS didn’t respond to requests for more detail on how or whether it expects day-to-day operations to shift without the enforcement guidance in place. The memo has already been off the books for more than a month following the decision of a Texas district court, but it’s too soon for any changes to be reflected in enforcement data.

Culture Shift

The biggest harm from courts sidelining the Biden administration’s enforcement priorities is that it undermines a slow-moving culture shift within ICE, Sandweg said. Common-sense priorities like targeting dangerous criminals should be deeply rooted in the agency, but seeing that guidance wiped away in court makes the goal seem political, he said.

Kate Christensen Mills, another senior ICE official during the Obama administration, said the absence of enforcement guidance also creates headaches for ICE officers by eliminating political cover for their decisions.

“A lot of them just want clear guidance,” said Mills, now a lobbyist for Monument Advocacy. “Without it, it just makes the job a bit more difficult because they don’t have something to point to.”

Vitiello, the Trump-era acting director, maintained that ICE officers and their local offices are in the best position to decide how to use their limited personnel and should have latitude to process anyone they encounter. Immigration judges can then decide whether an individual’s violations of immigration law merit detention or deportation.

“It’s going back to that kind of a system where nobody is exempt,” said Vitiello, who’s now an independent consultant.

Immigrants’ rights advocates are pushing the Biden administration to ensure ICE officers don’t adopt a rash approach. Altman, of the National Immigrant Justice Center, said she’ll be monitoring agency statistics to see if there’s an increase in detention book-ins of immigrants who aren’t considered threats.

The administration must “continue to think about the impact on family and community that an arrest or detention or deportation makes — and utilize discretion accordingly,” she said.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Sarah Babbage at; Anna Yukhananov at

Stay informed with more news like this – from the largest team of reporters on Capitol Hill – subscribe to Bloomberg Government today. Learn more.