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Washington, DC, October 28, 2021 – Yesterday, the Biden administration issued the third in a series of memoranda updating and improving civil immigration enforcement guidelines. The new agency-wide guidance, entitled Guidelines for Enforcement Actions in or Near Protected Areas, sets policy with respect to ICE and CBP enforcement actions in or near areas what previously were called “sensitive locations” such as religious institutions, schools, health centers, etc. This memo follows on previous memos related to overall enforcement priorities and worksite enforcement. 

Analysis by America’s Voice Legal Advisor David Leopold:

Mr. Leopold is Chair of the Immigration Group at Ulmer & Berne LLP, and he is a former President of the American Immigration Lawyers Association.

The guidance supersedes ICE’s 2011 “sensitive locations” memorandum by introducing the concept of “protected areas,” which the guidance designates as places at or near which DHS “should not take an enforcement action…that would restrain people’s access to essential services or engagement in essential activities.” The policy’s fundamental principle, as articulated by DHS Secretary Alejandro Mayorkas, is to accomplish its immigration enforcement mission “without denying or limiting individuals’ access to needed medical care, children access to their schools, the displaced access to food and shelter, people of faith access to their places of worship, and more.” According to Mayorkas, “Adherence to this principle is one bedrock of our stature as public servants.”

The guidance directs ICE and CBP agents that the determination of what is a “protected area” requires an understanding of “the activities that take place there, the importance of those activities to the well-being of people and the communities of which they are apart, and the impact an enforcement action would have on people’s willingness to be in the protected area and receive or engage in the essential services or activities that occur there.” The guidance offers a non-exhaustive list of “protected areas” including schools, medical facilities, places of worship, religious or civil ceremonies, and social services establishments. The guidance also broadens and updates the 2011 guidance by including COVID vaccine or testing locations and places where political rallies take place. 

Importantly, the new policy does not attempt to define what constitutes a “protected area.” Nor does it describe what the agency considers “at or near” a protected area. Rather, it instructs the field that “Whether an area is a ‘protected area’…is a determination that requires the exercise of judgment”; thereby ceding a tremendous amount of discretionary authority to rank and file ICE and CBP agents.  

Nor does it appear that DHS has completely thought through how the agency will monitor ICE and CBP compliance, including how broadly enforcement agents will define “the limited circumstances under which an enforcement action needs to be taken in or near a protected area.” While the guidance does provide that DHS HQ should be informed of enforcement actions taken at or near “protected areas,” it sets forth no clear agency review or tracking process to determine whether ICE and CBP agents in the field are properly implementing the guidance.

In short, while the Protected Areas enforcement policy is a welcome step in a series of civil immigration enforcement policy changes, the proof, as they say, will be in the pudding. Whether the guidance will prevent ICE agents from raiding a pro-immigration demonstration or family funerals will–like the removal and worksite enforcement guidelines that precede it–depend on the good faith of ICE and CBP enforcement agents. Sadly, the history of DHS immigration enforcement, particularly the record of the past four years, does not overwhelm with encouragement. The public has witnessed all too many instances of chaos and cruelty, including deaths in civil immigration detention, the separation and caging of children, the targeting of immigrants of color, the routing of refugees by agents on horseback, and the tearing apart of families. 

Hopefully, at some point in the near future, DHS immigration enforcement agents will have earned the trust of the American public. Until then a civil immigration enforcement policy that relies heavily on the good faith of ICE, CBP and other enforcement agents is a risky proposition for the American public. 

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