By Wendy Cervantes

On September 30, 2021, the Secretary of the Department of Homeland Security (DHS), Alejandro N. Mayorkas, issued a memo outlining the agency’s new immigration enforcement guidelines. After years of harmful immigration enforcement—including harsh anti-immigrant rhetoric and ramped up enforcement actions under the Trump Administration—families across the country have been torn apart or left in a constant state of fear. In response, advocates and community leaders have been calling for a drastic shift in how the government approaches immigration enforcement. While the new memo brings a welcome change in tone and makes some progress, it falls short of reigning in enforcement agents who have too often abused their authority and fails to fully protect youth, parents, and other caregivers at risk of deportation.

What the Memo Gets Right

The memo recognizes and reaffirms the long-standing authority of the executive branch to exercise discretion in immigration enforcement decisions. It also acknowledges that the 11 million people in the country without legal immigration status are contributing members of society, working in essential jobs and raising American families. The guidance also encourages enforcement decisions to be based on a comprehensive assessment of a person’s overall contributions and circumstances and provides a list of factors to consider when reviewing whether deportation is the appropriate consequence in a specific case.

Some of these factors are relevant to children’s well-being such as being a child of “tender age,” whether an individual may be eligible for humanitarian protection, and the impact of deportation on family in the United States, including how a family may be affected by losing a provider or caregiver. Finally, the memo acknowledges the importance of protecting civil rights and not allowing the immigration enforcement system to be used as a tool against workers and tenants exercising their lawful rights. Protecting people from exploitative employers and landlords is important for the economic security and housing stability of children in mixed-status families.

What the Memo Gets Wrong

However, the new DHS memo once again establishes problematic “categories” for prioritizing enforcement, including people who are deemed to “pose a threat to public safety.” While this may seem appropriate on its face, DHS is entrusting local Immigration and Customs Enforcement (ICE) field office staff and directors—who thrived under the Trump Administration—with making this decision. They erroneously and frequently place people in “dangerous” categories because their goal is maximum deportation.

Parents and caregivers who have been detained or deported are often prioritized for removal due to previous convictions or other involvement with the criminal legal system. This can include individuals who may have been victims of domestic violence or whose convictions occurred a long time ago. The new memo takes some steps in the right direction by specifying that agents should consider the time since an offense was committed, evidence of rehabilitation, and whether a conviction was vacated or expunged. But the guidance largely reinforces the harmful framework that closely aligns immigration enforcement with the criminal legal system and gives too much decision-making power to agents, once again putting youth and parents of color at greater risk of being deported and separated from their families.

Similarly, the memo also creates a very broad and disturbing priority category for those who “pose a threat to border security,” defining this as anyone apprehended while unlawfully attempting to enter the United States at a border or a port of entry, as well as those apprehended in the United States after November 1, 2020, who did not enter the country legally. The memo makes no exception for children, asylum seekers, or others eligible for and pursuing lawful immigration status. It makes thousands of children and families—including those seeking refuge from violence and instability in Central America and Haiti—priorities for enforcement, rather than protection.

Seeking asylum is a legal and human right, despite rhetoric from Secretary Mayorkas—eerily echoing messages from the Trump administration. After the Holocaust, the United States signed on to numerous refugee protection policies, laws, and treaties, claiming we would “never again” send people in need of safety back to their deaths. As proof that the United States is not, in fact, committed to the principle of protecting refugees: in just the past few weeks, more than 20 percent of the people deported to Haiti and put in harm’s way under Title 42—a section of the public health services law that allows for the exclusion of people in a public health emergency—are children.

What Now?

The new guidelines are set to take effect November 29, 2021, and local field office training, as well as the creation of a new case review process, are supposed to occur.

During the Biden Administration transition period, the Children Thrive Action Network (CTAN) warned that deportation had become a “national emergency” for children in immigrant families. The coalition wrote: “If left unaddressed, the immense trauma and toxic stress experienced by this generation of children will have long-term impacts on their healthy development and ultimately our nation’s future.” CTAN called on the new administration to “redesign policies with a focus on family unity, including appropriate protections and procedures that minimize harm and consider the best interests of children during all stages of immigrant enforcement actions, and ensure DHS hires professionals with child welfare and development expertise.”

While the Biden Administration has taken some positive steps it has much more to do to ensure children and families are no longer harmed by immigration enforcement. This includes:

• Cutting the budget of ICE dramatically;
• Removing any immigration enforcement officials from duty who are not committed to the values expressed by the current administration;
• Hiring experts with child well-being expertise to inform ICE immigration enforcement decisions at all points in the process;
• Ensuring that any training on this memo addresses the importance of family unity and children’s well-being, and the foundational protection of parental rights throughout the enforcement process;
• Mitigating the harm of immigration enforcement on children by strengthening policies such as the sensitive locations policy and the detained parent directive;
• Facilitating a process for return of parents, caregivers, and other long-term U.S. residents previously deported; and
• Building in real training and accountability measures for the enforcement priorities memo and other related policies.

Finally, Congress must also pass a citizenship law this year, and the Biden-Harris Administration must ensure that no one eligible for citizenship under current proposals is deported.

Deportation is an extreme consequence for a civil paperwork problem that has fundamental and lasting impacts on children, families, and communities. The U.S. government should lean sharply toward family unity, rather than separation, whenever and wherever possible. The stakes are too high—for America’s kids, and for all of us.

For more recommendations on how the Biden Administration can better protect children in immigrant families, see this CTAN analysis, “Federal Transition Priorities to Defend and Support America’s Children in Immigrant Families.”