ICE Didn’t Follow Federal Enforcement Priorities Set by Biden Administration

In 2021, the Biden administration issued policy guidance on how U.S. Immigration and Customs Enforcement (ICE), the agency charged with executing immigration laws within the United States, should carry out immigration enforcement. This policy, frequently called the “Enforcement Priorities,” labeled certain groups of people that the U.S. Department of Homeland Security (DHS) considers to be threats to national security, border security, or public safety as priorities for enforcement actions. The guidance encouraged ICE agents to use prosecutorial discretion in the cases of individuals who did not fall in these categories. Below is a breakdown of how ICE carried out these policies.

The Biden administration established its enforcement priorities for DHS in a guiding January 2021 memorandum and a second memo for ICE specifically the following month. On September 30, 2021, DHS Secretary Alejandro Mayorkas issued revised (final) guidance on enforcement priorities, which went into effect on November 29, 2021. A federal court in Texas halted DHS’s implementation of these guidelines in June 2022. However, the U.S. Supreme Court overruled this because the states lacked standing to challenge the federal government’s discretion over arrest and deportation decisions.

The American Immigration Council, the Immigrant Legal Resource Center, and Mijente Support Committee filed two Freedom of Information Act (FOIA) requests for data about ICE’s enforcement activities, which DHS required ICE to keep pursuant to the January and February 2021 memos. The ensuing analysis of this data provides a window into how ICE enforced immigration laws while these interim priorities were in effect. It also demonstrates that ICE frequently found ways to arrest and remove people who did not fall under the categories outlined in the memos.

In light of these findings and the Supreme Court’s decision, the Biden administration should look carefully at how ICE executed these guidelines in 2021 and how to implement humane and generous prosecutorial discretion going forward.

Historical Context of Immigration Enforcement Policies

Both Republican and Democratic administrations have implemented priorities for how they plan to enforce immigration laws. Although all undocumented immigrants are at risk of removal, enforcement priorities typically define different categories or groups of people and establish a ranking of which should be higher (or lower) priority for pursuing arrest, detention, and deportation. Under President George W. Bush, officials laid out several factors officers needed to consider in deciding whether to pursue enforcement action against an individual, including the person’s length of residence in the United States; criminal history; humanitarian concerns; likelihood of deportation; whether the person was eligible for some form of immigration status; cooperation with law enforcement; and honorable U.S. military service.

In 2014, the Obama administration directed ICE to prioritize for enforcement individuals who were deemed by DHS to pose a national security threat; those with certain criminal records; and people receiving final orders of removal, among others. When President Trump took office, his administration virtually eliminated priorities for enforcement by prioritizing an extremely broad range of individuals, and repeatedly threatened immigrants with detention and deportation.

The Biden administration’s 2021 memos established three categories of individuals who would be presumed priorities for enforcement actions:

• “National security” - those who posed a threat to national security
• “Border security” - those arrested while trying to enter the United States unlawfully
• “Public safety” - those who had been convicted of an aggravated felony as defined in the immigration law and presented a current risk to public safety.¹

The memos also stated that ICE officers could take enforcement actions against individuals who did not meet these criteria if the officers provided written justification for the enforcement action and obtained supervisory pre-approval. ICE officers used this limited discretion to take enforcement actions against people outside the three categories, labeling these enforcement actions as “other” priority, despite such a category not being listed in either of the guiding memos.

ICE Enforcement Trends

The number of individuals arrested by ICE in the past decade has varied. During a period in March to November 2015 when the Obama administration’s enforcement priorities were in place, ICE arrested approximately 90,000 individuals, or roughly 10,000 per month. Over a comparable period during the Trump administration, March to November 2019, ICE arrested more than 104,500 people, about 11,600 per month. As the United States entered COVID-related restrictions in 2020, monthly arrests decreased to approximately 6,000 arrests in April 2020 but climbed to 7,000 by that September. The chart below (see Figure 1) outlines the number of administrative arrests between March and November for the six years before the start of the pandemic and for 2021. The chart provides a visual comparison of how different administrations have influenced ICE enforcement. While the arrest numbers suggest that the COVID-19 pandemic had an impact on ICE enforcement, other factors such as the change in priorities may also have contributed to fewer arrests in 2021 than prior to the pandemic.

Figure 1: Administrative Arrests between March – November from 2014-2019 and 2021

ICE Enforcement Actions in 2021

Using the enforcement data obtained from ICE for the period of February 18 to November 11, 2021, we were able to analyze cumulative enforcement data for each field office and explore how frequently ICE deviated from the three priority categories. As demonstrated in Figure 2 below, a total of 57,257 enforcement actions were carried out by ICE Enforcement and Removal Operations (ERO) during this period. These enforcement actions were categorized into three distinct types: arrests, detainers (requests submitted by ICE to other law enforcement agencies to notify ICE before releasing an individual and detain them to facilitate a transfer to immigration detention), and removals (deportations). The data showcased in Figure 2 reveals that arrests accounted for nearly 48 percent of all ICE enforcement actions. Detainers comprised roughly 30 percent of the enforcement actions, while removals constituted approximately 23 percent of the actions taken.

Figure 2: ICE Enforcement Actions from February 18 - November 11, 2021

Figure 2, accessible through the top buttons, also offers additional insights into how ICE priorities have influenced enforcement actions. Notably, nearly a third (33.2 percent) of arrests fell under the “other” category, under which ICE agents took enforcement action in spite of the targeted person not meeting the established priorities. Nearly half (49.8 percent) of detainers were carried out against people in the “other” category, while 23.4 percent of removals were also classified as “other.” (The priority category of “national security” is not represented in Figure 2, given that fewer than 1 percent of ICE enforcement actions were categorized under this particular priority.)

We also conducted an analysis of immigration enforcement across multiple regions by focusing on areas of responsibility (AORs). These AORs are regions of the United States under the supervision of ICE field offices, responsible for managing and executing immigration enforcement activities within their designated jurisdictions. The accompanying map (see Figure 3) highlights the various AORs within the United States. By hovering over a specific region, you can access information regarding the AOR's name and the percentage of ICE enforcement actions categorized as an “other” priority that were carried out in that region between February 18 and November 11, 2021. Across the entire United States, over 35 percent of ICE enforcement activities were carried out against people who did not fall into the three categories ICE agents were instructed to prioritize, and instead were labeled “other.” Notably, the New York City AOR exhibited the highest proportion, with 69.3 percent of ICE enforcement activities falling under the “other” priority category. The Newark AOR had the second highest share of enforcement activities in the “other priority” category at 65.9 percent. The San Antonio AOR had the lowest percentage, standing at 9.9 percent in terms of activities classified as “other.”

Figure 3: Map of ICE’s Areas of Responsibility and Share of Enforcement Actions Classified as "Other" (Non-Priority) from February 18 to November 11, 2021.

Dissecting the 'Other' Criteria: Trends in Non-Priority ICE Enforcement Actions

Given that more than a third (36.2 percent) of ICE enforcement actions in this period were carried out against people who did not fit within the established priorities of public safety, border security, or national security, we sought additional enforcement data from ICE, specifically targeting enforcement using the “other” priority. We obtained individual-level data through a FOIA request encompassing all ICE actions from February 23 through November 28, 2021 that were categorized as “other.” This dataset, with over 22,000 individual cases, provides greater insight into the timing, location, and other aspects of ICE’s enforcement actions during the application of the 2021 memos.

ICE enforcement actions according to nationality

The data obtained from our FOIA request enabled us to analyze ICE actions according to nationality. From February to November 2021, individuals of Mexican nationality comprised the largest group subjected to ICE actions classified as “other” priority, accounting for over 12,000 enforcement actions, or 53.7 percent of the total actions in this category. Guatemalans came in a distant second, with 2,633 actions. Figure 4 enumerates the top 10 nationalities that were most frequently subjected to ICE actions categorized as “other.” In the second tab, we compare enforcement actions based on nationality with the ten most prevalent noncitizen nationalities in the U.S. immigrant population.

Figure 4: Top 10 Nationalities Subjected to ICE Actions Categorized as ‘Other’ (Non-Priority) from February 23 - November 28, 2021.

ICE enforcement actions categorized as 'other' in each Area of Responsibility

Data from our FOIA request also allowed us to analyze specific ICE enforcement activities categorized as an “other” priority by Areas of Responsibility (AOR). By moving your cursor over the regions displayed on the map in Figure 5, you can uncover the number of actions specific to a given AOR, along with a donut chart that illustrates the distribution of arrests, detainers, and removals. The buttons on top of Figure 4 offer sorting capabilities, either by the total number of enforcement actions or by the percentage of arrests, detainers, and removals.

Among the 24 AORs, even though the New York AOR had the highest percentage of its enforcement actions fall into the “other” category, the Chicago district recorded the highest number of ICE enforcement actions that fell under the “other” category.

Figure 5: ICE Actions Categorized as “Other” (Non-Priority) by Area of Responsibility (AOR) from February 23 - November 28, 2021.

Approval rates for ICE enforcement actions

The enforcement priorities memoranda included a key mechanism for oversight: when officers sought to take enforcement action against individuals who did not fall into any of the three presumed enforcement priorities categories, they had to justify the enforcement action in writing and obtain approval from a Field Office Director or a Special Agent in Charge.

Using ICE enforcement data from our FOIA request, we were able to discern which AORs had the highest and lowest approval rates within enforcement actions categorized as “other” priority. The overall approval rate of requests to conduct enforcement against people who didn’t fit the three priorities was 89.5 percent. About 6.2 percent of requests were denied, while 4.3 percent were categorized as “under review” or “revision required” in the data provided. Buffalo, Washington D.C., and Baltimore had the highest approval rates by AOR, which were all above 97 percent. The three AORs with the lowest approval rates were New York City, Los Angeles, and New Orleans—all below 75 percent. See Figure 5.

In addition, when we reviewed ICE enforcement data from February 23 to November 28, 2021, we found that of the 22,454 cases, only 11,719 cases had both an action date and an approval date. Of those with both, 1,290 (11 percent) had an approval date after the enforcement action date, suggesting that the officer went ahead with the enforcement action before seeking supervisory review as required.

This data suggests that ICE’s pre-approval process did not serve as a significant check on the agency, but largely as a rubber stamp for approval of officers’ actions.

Figure 6: ICE Enforcement Approval Rates for Activities Classified as Other (Non-Priority) by Area of Responsibility (AOR) and Nationality from February 23 – November 28, 2021.

Clicking on the “Nationality” button at the top of Figure 5 allows you to sort the approval rates by nationality. Brazil, Haiti, and El Salvador had the highest approval rates for the “other” category. China, Guyana, and Spain had the lowest approval rates.

Key Takeaways

ICE often did not follow its own guidelines

ICE’s data undermines Secretary Mayorkas’ statements that ICE will not engage in “indiscriminate enforcement” and that it is not the agency of the past. Despite specific policies laid out by the DHS Secretary, ICE agents arrested and removed tens of thousands of people not designated as priorities. This data further demonstrates how the establishment of enforcement priorities did not “tie immigration officers’ hands” as Texas argued in its brief to the U.S. Supreme Court asking it to eliminate prioritization guidelines. On the contrary, ICE’s enforcement actions against non-priority immigrants accounted for roughly one-third of its enforcement activity during this period. For some Areas of Responsibility, the share of activities categorized as an “other priority” was more than half (e.g. New York City, Chicago, Saint Paul).

Need for immigration enforcement data

Robust data collection (along with other measures) is necessary to provide the public, including elected officials, meaningful oversight over ICE’s enforcement activities. Secretary Mayorkas’ September 2021 memo called on then-Acting ICE Director Tae Johnson to work with the offices of the Chief Information Officer; Strategy, Policy, and Plans; Science and Technology, Civil Rights and Civil Liberties; and Privacy within DHS to determine what data should be collected. DHS should require ICE to maintain data that includes the location, i.e. city and county, of arrests and detainers issued and the specifics of where arrests take place (e.g. automobile stop, home arrest, courthouse, transfer from other law enforcement agency, worksite, etc.).

Comprehensive map of ICE enforcement

The map in Figure 7 offers an analysis of the ICE enforcement data we've compiled by Area of Responsibility (AOR). By hovering your cursor across various regions on the map, you can explore information on ICE enforcement. This includes the proportion of ICE enforcement initiatives segmented by priority; the count of activities earmarked as "other” priority; and the percentage of requests to conduct activities against “other” priority individuals that were approved by superiors.

For example, by hovering over Florida on the map, in the Miami Area of Responsibility, which covers Florida, Puerto Rico, and the U.S. Virgin Islands, you can see that the Miami AOR issued a total of 1,033 detainers from February 18 until November 11, 2021. Over 60 percent (63.3 percent) of those detainers were of individuals who fell outside the presumed enforcement priorities. FOIA data also shows that of all requests for approval of enforcement actions outside the priorities, the Field Office supervisors rejected less than one percent of those requests.

As you look through the data, bear in mind that each ICE office operates under the context of different state laws encouraging or limiting immigration enforcement, which themselves change over time. Continuing with the Florida example, in recent years, Florida has enacted several anti-immigrant measures to intensify the detrimental collaboration between ICE and local law enforcement agencies, which coincides with ICE’s aggressive enforcement in the Miami Field Office. In 2019, Florida passed a law prohibiting sanctuary policies and forcing Florida sheriffs to comply with ICE detainers, which request that an agency continue to detain a person and transfer them to ICE custody instead of releasing them when their case is concluded, rather than having the option to decline ICE’s request to keep the person in custody. The state then expanded the law in 2022, requiring sheriffs to sign 287(g) agreements, which authorize local police to perform civil immigration enforcement functions. This year, the Florida legislature enacted yet another slate of anti-immigrant policies, ranging from the state’s refusal to recognize driver’s licenses issued by other states to undocumented immigrants, to punishments for transporting undocumented migrants into the state. Advocates should consider the data provided in these tables in the context of their own state law environment, as here with the Miami Field Office.

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Methodology

We obtained ICE enforcement data from two separate requests made under the Freedom of Information Act (FOIA). The first request produced cumulative data on all enforcement actions between February 18 and November 11, 2021. This data was broken down by area of responsibility (AOR). The second request produced a dataset that included ICE activities labeled as "other priority" and covered the period from February 23 to November 28, 2021. This second request brought in a large amount of data, with details on 23,570 individual ICE actions including information like nationality, type of activity, and approval status. We excluded 1,126 actions from the data presented here because these entries lacked clear information about the type of enforcement action, such as whether it was an arrest, detainer, or removal.

¹ The focus of this report is to analyze the available data to see how ICE carried out enforcement actions during the period these priorities were in effect. How these categories are defined, and whether they represent good policy, is beyond the scope of this analysis.