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U.S. Will No Longer Deport Illegal Immigrants Based on Undocumented Status Alone

ICE Field Office Director, Enforcement and Removal Operations, David Marin, and U.S. Immigration and Customs Enforcement’s Fugitive Operations team search for a Mexican national at a home in Hawthorne, Calif., March 1, 2020. (Lucy Nicholson/Reuters)

Per a Thursday directive from Homeland Security Secretary Mayorkas, immigration officials can no longer detain and deport migrants based on their illegal status alone.

The new guidance directs Immigration and Customs Enforcement to prioritize apprehending and expelling criminal immigrants who could endanger domestic and border security. The memo claims that approximately 11 million illegal immigrants reside in the United States.

Agents will conduct a “case-by-case assessment” of the “totality of the circumstances” to determine whether an individual qualifies for removal, according to a press release from the department.

In the guidance, Mayorkas justifies the revised procedure by noting that it is enshrined in law, as well as “deep-rooted tradition,” that federal government officials have broad enforcement discretion to decide “who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders.”

To evaluate whether a migrant is a threat to public safety, the secretary listed a few “aggravating factors” such as the weight and sophistication of the offense as well as former criminal record, that could serve to escalate expulsion. However, he cited several more “mitigating factors” that he says could decrease the impetus to deport an immigrant, such as “lengthy presence in the United States” and “time since an offense and evidence of reconciliation.”

Taking effect November 29, the order prohibits ICE officers from arresting and deporting illegal immigrants who have been “contributing members” of U.S. society, including faith leaders, farmworkers and frontline health workers.

“We are guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being,” Mayorkas wrote in the memo.

“As we strive to provide them with a path to status, we will not work in conflict by spending resources seeking to remove those who do not pose a threat and, in fact, make our Nation stronger,” he added.

Republican lawmakers have slammed the Biden administration’s conduct of the border crisis over the last several months, which saw an unprecedented surge of migrant encounters, including over ten thousand in the last week alone.

Likening the status quo to a de-facto “open border,” they’ve attributed the spiraling fiasco to President Biden’s reversal of a number of Trump-era measures that resulted in greatly declined migration levels. For instance, Biden scrapped the “Remain-in Mexico” policy that required migrants to remain in their home countries while their asylum cases were being adjudicated, which had the effect of deterring those without legitimate claims.

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