The new guidelines replace interim rules issued in February that were initially blocked by a federal judge in August as part of a lawsuit brought by Texas and Louisiana. They break from a more aggressive approach to immigration enforcement under former President Donald Trump, who early in his presidency directed authorities to apprehend anyone who was illegally in the country.
Department of Homeland Security Secretary Alejandro Mayorkas told reporters that the new policy was based on the reality that the U.S. can’t go after all people in the country without legal status and shouldn’t try because many “have been contributing members of our communities for years.”
Authorities will be directed to focus on noncitizens who have crossed recently, defined as after Nov. 1, 2020, or who determined to be a threat because of national security or “serious criminal activity.” Homeland Security includes U.S. Immigration and Customs Enforcement and the Border Patrol.
Unlike the interim rules, the criminal activity is not limited to the category known in legal terms as an aggravated felony but will depend on the “totality of the facts and circumstances,” Mayorkas said. Anyone would be considered a priority if they are engaged or even suspected of terrorism or espionage, according to the memo. The new rules take effect Nov. 29.
Immigration authorities would be prohibited from arresting and seeking to deport someone in retaliation for exercising First Amendment rights, such as joining a protest or taking part in union activities.
“We are requiring and frankly empowering our workforce, critically empowering our workforce, to exercise their judgment, their law enforcement judgment,” the secretary said.
Advocates for strict immigration enforcement have criticized the interim guidelines, which were similar in intent as the newly released rules, because they were seen as a top-down approach and one that precluded low-level arrests that might yield investigative leads into bigger cases or help serve as a deterrent to illegal immigration.
Sen. Tom Cotton, R-Ark., said on Twitter that Biden has “welcomed” the illegals who have crossed and would now promise those already in the country that “they may stay in the U.S. without repercussions” with the new rules.