DHS Potentially Back on Track to Remove Noncitizens Who Are a Threat to Public Safety

Noncitizens who have been convicted of criminal activity while in the United States illegally may see a rise in detention efforts from U.S. immigration enforcement deputies after the next few months. The actions may be attributed to the recent court lift that had blocked the Department of Homeland Security’s memo, which outlined the directive, nationwide before it could take effect.

On April 12, 2022, a U.S. Appeals Court lifted the preliminary injunction issued by the Southern District Court of Ohio on a U.S. Department of Homeland Security (DHS) memorandum. DHS Secretary Alejandro Mayorkas drafted the memo on September 30, 2021 to take effect on November 30, 2022. 

What Does the Memorandum Say About Noncitizens?

The memorandum is meant to guide the DHS’s deputies in prioritizing the removal of noncitizens who are a threat to national security, border security and public safety, or have been convicted of aggravated felonies. These threats can be interpreted as the following but are not limited to:

When determining whether an individual is a current threat to public safety or not, several militating factors can be considered both in favor or against taking enforcement action, as exemplified in the memorandum. 

Factors to Consider Before Taking Enforcement Action on a Noncitizen

While the list is not exhaustive, it provides a baseline for evaluating the cumulative risk a noncitizen poses to public safety as these assessments should be made in consideration of all facts and circumstances, rather than according to bright lines and categories. 

Factors in favor of enforcement action include but aren’t limited to:

• The gravity of an offense
• The sentence imposed for a conviction
• The nature of harm caused the criminal offense
• The degree of harm caused by the criminal offense
• The sophistication of the criminal offense
• The involvement or threatened involvement of a firearm/weapon
• A prior criminal record

Factors in favor of taking no enforcement action include but aren’t limited to:

• Older age
• Long-time presence in the U.S.
• Mental condition that could have contributed to criminal conduct
• Mental condition requiring care or treatment
• Victim of crime
• Victim, witness or party in legal proceedings
• Impact of removal on family in U.S. (no caregiver)
• Eligibility for humanitarian protection or applicable immigration relief
• Military or public service of individual or their family member
• Time since committing an offense
• Evidence of rehabilitation
• Expunged or vacated conviction

Ohio, Arizona and Montana Requested An Injunction 

The nationwide injunction placed on the memo was an effort by the States of Ohio, Arizona and Montana to challenge the federal government’s exercise of prosecutorial discretion in the immigration sector – the right to decide which persons will be subject to arrests, detention, removal proceedings and execution of removal orders.

While the states claimed that the priorities set forth by the memorandum violated immigration law and would cause potential fiscal damage to the states, the speculations could not be proven with any concrete evidence. 

The judges of the 6th U.S. Circuit Court of Appeals also said on April 12 that the memo instructs deputies which cases to prioritize, but does not interfere with the Department’s autonomy in how they deploy resources and set prioritization categories. The memo’s identification as a “Guideline” does not connote binding legal effect, so it also can’t prevent the Department from assigning enforcement agents at their own discretion either. 

11 Million Noncitizens in the U.S.

Secretary Mayorkas argues that the federal government does not have enough resources to arrest and remove all 11 million undocumented individuals in the United States. For this reason, the federal government will be using their discretionary authority to prioritize where DHS’s immigration enforcement actions will target: the removable noncitizens who threaten America’s well-being.

Mayorkas acknowledges in the memo the bipartisan recognition of the essentiality of America’s undocumented immigrants, many of whom have lived and worked in the U.S. for years. He goes on to conclude that being a removable noncitizen alone is not enough reason for enforcement action to be taken against them. 

“We do not lessen our commitment to enforce immigration law to the best of our ability. This is how we use the resources we have in a way that accomplishes our enforcement mission most effectively and justly,” Mayorkas said in the memo. 

The National Government’s initial plan to target the removal of noncitizens who are a current threat to public safety is likely to take effect following the June 11, 2022 court date, where the goal is to resolve the appeal in oral argument and allow the Federal Government to resume immigration enforcement with the new priorities set forth by the memo.