The Department of Homeland Security Memo released today. More soon.
January 20, 2021
MEMORANDUM FOR: Troy Miller
Senior Official Performing the Duties of the Commissioner
U.S. Customs and Border Protection
Tae Johnson
Acting Director
U.S. Immigration and Customs Enforcement
Tracey Renaud
Senior Official Performing the Duties of the Director
U.S. Citizenship and Immigration Services
CC: Karen Olick
Chief of Staff
FROM: David Pekoske
Acting Secretary
SUBJECT: Review of and Interim Revision to Civil Immigration
Enforcement and Removal Policies and Priorities
______________________________________________________________________________
This memorandum directs Department of Homeland Security components to conduct a
review of policies and practices concerning immigration enforcement. It also sets interim
policies during the course of that review, including a 100-day pause on certain removals to
enable focusing the Department’s resources where they are most needed. The United States
faces significant operational challenges at the southwest border as it is confronting the most
serious global public health crisis in a century. In light of those unique circumstances, the
Department must surge resources to the border in order to ensure safe, legal and orderly
processing, to rebuild fair and effective asylum procedures that respect human rights and due
process, to adopt appropriate public health guidelines and protocols, and to prioritize responding
to threats to national security, public safety, and border security.
This memorandum should be considered Department-wide guidance, applicable to the
activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border
Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).
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A. Comprehensive Review of Enforcement Policies and Priorities
The Chief of Staff shall coordinate a Department-wide review of policies and practices
concerning immigration enforcement. Pursuant to the review, each component shall develop
recommendations to address aspects of immigration enforcement, including policies for
prioritizing the use of enforcement personnel, detention space, and removal assets; policies
governing the exercise of prosecutorial discretion; policies governing detention; and policies
regarding interaction with state and local law enforcement. These recommendations shall ensure
that the Department carries out our duties to enforce the law and serve the Department’s mission
in line with our values. The Chief of Staff shall provide recommendations for the issuance of
revised policies at any point during this review and no later than 100 days from the date of this
memo.
The memoranda in the attached appendix are hereby rescinded and superseded.
B. Interim Civil Enforcement Guidelines
Due to limited resources, DHS cannot respond to all immigration violations or remove all
persons unlawfully in the United States. Rather, DHS must implement civil immigration
enforcement based on sensible priorities and changing circumstances. DHS’s civil immigration
enforcement priorities are protecting national security, border security, and public safety. The
review directed in section A will enable the development, issuance, and implementation of
detailed revised enforcement priorities. In the interim and pending completion of that review,
the Department’s priorities shall be:
1. National security. Individuals who have engaged in or are suspected of terrorism or
espionage, or whose apprehension, arrest and/or custody is otherwise necessary to
protect the national security of the United States.
2. Border security. Individuals apprehended at the border or ports of entry while
attempting to unlawfully enter the United States on or after November 1, 2020, or
who were not physically present in the United States before November 1, 2020.
3. Public safety. Individuals incarcerated within federal, state, and local prisons and
jails released on or after the issuance of this memorandum who have been convicted
of an “aggravated felony,” as that term is defined in section 101(a) (43) of the
Immigration and Nationality Act at the time of conviction, and are determined to pose
a threat to public safety.
These priorities shall apply not only to the decision to issue, serve, file, or cancel a Notice
to Appear, but also to a broad range of other discretionary enforcement decisions, including
deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle,
dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole. In
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addition, all enforcement and detention decisions shall be guided by DHS’s ability to conduct
operations and maintain custody consistent with applicable COVID-19 protocols.
While resources should be allocated to the priorities enumerated above, nothing in this
memorandum prohibits the apprehension or detention of individuals unlawfully in the United
States who are not identified as priorities herein. In order to ensure appropriate allocation of
resources and exercise of prosecutorial discretion, the Acting Director of ICE shall issue
operational guidance on the implementation of these priorities. This guidance shall contain a
protocol for the Acting Secretary to conduct a periodic review of enforcement actions to ensure
consistency with the priorities set forth in this memorandum. This guidance shall also include a
process for the Director of ICE to review and approve of any civil immigration enforcement
actions against individuals outside of federal, state or local prisons or jails.
These interim enforcement priorities shall go into effect on February 1, 2021 and remain
in effect until superseded by revised priorities developed in connection with the review directed
in section A.
C. Immediate 100-Day Pause on Removals
In light of the unique circumstances described above, DHS’s limited resources must be
prioritized to: (1) provide sufficient staff and resources to enhance border security and conduct
immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply
with COVID-19 protocols to protect the health and safety of DHS personnel and those members
of the public with whom DHS personnel interact. In addition, we must ensure that our removal
resources are directed to the Department’s highest enforcement priorities. Accordingly, and
pending the completion of the review set forth in section A, I am directing an immediate pause
on removals of any noncitizen1
with a final order of removal (except as noted below) for 100
days to go into effect as soon as practical and no later than January 22, 2021.
The pause on removals applies to any noncitizen present in the United States when this
directive takes effect with a final order of removal except one who:
1. According to a written finding by the Director of ICE, has engaged in or is
suspected of terrorism or espionage, or otherwise poses a danger to the national
security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States,
provided that he or she has been made fully aware of the consequences of waiver
1 “Noncitizen” as used in this memorandum does not include noncitizen nationals of the United
States.
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and has been given a meaningful opportunity to access counsel prior to signing
the waiver;2
or
4. For whom the Acting Director of ICE, following consultation with the General
Counsel, makes an individualized determination that removal is required by law.
No later than February 1, 2021, the Acting Director of ICE shall issue written instructions
with additional operational guidance on the further implementation of this removal pause. The
guidance shall include a process for individualized review and consideration of the appropriate
disposition for individuals who have been ordered removed for 90 days or more, to the extent
necessary to implement this pause. The process shall provide for assessments of alternatives to
removal including, but not limited to, staying or reopening cases, alternative forms of detention,
custodial detention, whether to grant temporary deferred action, or other appropriate action.
D. No Private Right Statement
These guidelines and priorities are not intended to, do not, and may not be relied upon to
create any right or benefit, substantive or procedural, enforceable at law by any party in any
administrative, civil, or criminal matter.