By Hannah Liu and Suma Setty 

The U.S. Supreme Court decided last month to delay hearing a case regarding the reinstatement of immigration enforcement priorities released last year by the U.S. Department of Homeland Security (DHS). This has serious implications for how immigration enforcement is carried out, with direct consequences for immigrant families, including those with U.S. citizen children. 

In September 2021, DHS Secretary Alejandro Mayorkas outlined immigration enforcement priorities in a memo to Immigration and Customs Enforcement (ICE). This guidance reaffirms the executive branch’s authority to exercise discretion in immigration enforcement decisions. The memo falls short in several areas, such as erroneously categorizing some immigrants as “threats to public safety” and further entangling immigration enforcement with the criminal legal system. However, it also provides important guidelines to help ensure that immigration enforcement agents consider a range of factors when making removal decisions, including the impact of removal on family members remaining in this country. Setting enforcement priorities, as the memo does, is a critical step in acknowledging the full humanity and personhood of immigrants. 

A judge in Texas, however, placed an injunction on the guidance, prohibiting DHS from implementing it. This decision was upheld by the 5th Circuit Court of Appeals. The 5th Circuit, which has reflected anti-immigrant sentiment in past decisions, justified the injunction by stating that the guidance allows the U.S. government to shirk its duty to arrest and detain immigrants convicted of a broader range of offenses.  

The U.S. Supreme Court, instead of taking immediate action, is now set to hear the case in December and rule on it in 2023. In the meantime, the injunction means that DHS can’t deprioritize the detention and deportation of people who pose no serious threat to public safety. This puts parents and their children who have lived in the U.S. for years and are essential contributors to their communities at increased risk of detention and deportation.  

Prosecutorial discretion: An established power 

One element addressed by the Mayorkas guidance is “prosecutorial discretion,” an inherent power of law enforcement agencies, such as DHS, to prioritize cases by strategically employing limited capacity. The recent backlash against prosecutorial discretion in immigration enforcement—including through the injunction—represents a departure from conventional wisdom on the executive branch’s authority. Prosecutorial discretion in immigration enforcement has been an established power of the executive branch for decades. Presidential administrations since 1976 have employed prosecutorial discretion in the immigration system to maximize immigration authorities’ finite resources. 

Under President Obama, DHS’s priorities focused on “threats to national security, border security, and public safety” and individuals who entered illegally after January 1, 2014. President Trump rescinded the policies on enforcement priorities and prosecutorial discretion in an attempt to dramatically ramp up arrests and deportations. 

Soon after President Biden took office, his administration took steps to restore previous enforcement protocols. Along with reaffirming prosecutorial discretion authority, the Mayorkas memo went further, encouraging a more comprehensive assessment of a person’s overall circumstances and contributions in the United States to determine enforcement actions, including considering the wellbeing of a child if a parent faces deportation. 

Immediate impact on immigrant families 

The immediate impact of ICE’s inability to carry out its enforcement priorities is difficult to measure, although we know that previous priority memos have led to a decrease in deportation orders affecting parents and others who meet the criteria for discretion.  

In the wake of the injunction and until the Supreme Court rules on the case next year, legal providers representing immigrants can no longer use the enforcement priorities as a basis to defend their clients. While DHS attorneys are still able to make case-by-case determinations at their own discretion, lawyers representing immigrants have lost a crucial tool to defend their clients. 

Furthermore, the injunction on enforcement priorities needlessly compounds families’ existing fear and uncertainty caused by our immigration system. As a result, immigrants and their children continue to face the consequences, including harms to their health, educational achievement, and economic security. 

The bigger picture 

These priorities are a critical foundation for ICE’s efforts to refocus immigration enforcement. Other examples of policies that help mitigate the harm of immigration enforcement on children and families include the protected areas policy and, most recently, the parental interest directive. However, without the enforcement priorities in effect, children will continue to face an increased risk of separation from a parent. With the fate of the Deferred Action for Childhood Arrivals (DACA) program in the hands of unfriendly courts, protections for immigrants are steadily eroding. 

In addition, the Biden Administration has experienced setbacks, primarily in the courts, in its efforts to roll back policies like “Remain in Mexico” and Title 42 that put children in danger and tear families apart. It must take steps to fully dismantle these policies as soon as possible. 

After one-and-a-half years into a new administration, we should be much closer to realizing a just and humane immigration system. Instead, we are in judicial limbo, with the fates of thousands of families in the hands of a powerful few.