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DHS head limits ICE operations at 'protected sites'

Mayorkas orders consideration of 'broader societal interests' but advocates worry policies relies on agent discretion

Agents with U.S. Immigration and Customs Enforcement will again limits arrests at schools, hospitals, and other "protected" areas under new guidelines issued Wednesday by the Homeland Security secretary—part of the Biden administration's effort to roll back hard-nosed Trump-era policies.

In a memo to the acting heads of ICE and Customs and Border Protection, Alejandro Mayorkas wrote that agents should "to the fullest extent possible" avoid making arrests "in or near a location that would restrain people's access to essential services or engagement in essential activities."

Immigration advocacy groups called Mayorkas' memo a "welcome step," but worried that ICE agents could circumvent the rules, which largely rely on their individual judgment.

The change Wednesday was one of four major shifts instituted by Mayorkas over the last ninth months intended to focus immigration enforcement on specific people. Earlier this month, Mayorkas announced new guidelines for prosecutorial discretion, telling ICE agents that just because someone is legally "removable" that should "not be the basis of an enforcement action against them."

Mayorkas argued that DHS does not have the resources to pursue all of the estimated 11 million people in the country without legal status and that the agency should focus on those who pose the greatest risk to society. Agents and officer should consider "broader societal interests," he said.

"We can accomplish our law enforcement mission without denying 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," Mayorkas said.

The U.S. Supreme Court has held that a "removable alien" is not committing a crime merely by being inside the United States.

The new DHS memo limits arrests at schools, including preschools, elementary schools, and universities, as well as playgrounds and childcare centers, as well as bus stops. Agents are also limited from making arrests, or conducting operations near medical and mental healthcare facilities. Mayorkas also outlined a prohibition against operations near disaster or emergency shelters, including along evacuation routes, "where shelter or emergency supplies, food, or water are being distributed, or registration for disaster-related assistance or family reunification is underway.

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Included among the prohibitions were places of worship, including temporary churches, as well as funerals, rosaries, weddings, and other religious ceremonies occur.

The memo also creates a prohibition on operations at parades, demonstrations and rallies.

"We need to consider the fact that an enforcement action taken near – and not necessarily in – the protected area can have the same restraining impact on an individual's access to the protected area itself," Mayorkas said.

The order, however, is not iron-clad, and instead allows ICE agents to make arrests if there's a national security threat, an imminent risk of death or violence, or risk that evidence or material to a criminal case will be destroyed. Mayorkas' order also allows ICE agents to go into protected spaces if they're in "hot pursuit" of someone who "poses a public safety threat."

He added that the list was not complete, and said "the exercise of judgment is required" from agents.

"Absent exigent circumstances" officials "must seek prior approval" from headquarters, he said. However, if ICE agents take action "due to exigent circumstances and prior approval was therefore not obtained" they must consult headquarters after the fact. "To the fullest extent possible, any enforcement action in or near a protected area should be taken in a non-public area, outside of public view, and be otherwise conducted to eliminate or at least minimize the chance that the enforcement action will restrain people from accessing the protected area."

"We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country's well-being require it," Mayorkas wrote. "By exercising our discretionary authority in a targeted way, we can focus our efforts on those who pose a threat to national security, public safety, and border security and thus threaten America's well-being. We do not lessen our commitment to enforce immigration law to the best of our ability."

Advocates praised the memo, but worried that the change relies on agents who have long operated in a culture marked by "impunity."

"The Biden administration's new policy safeguarding protected areas from immigration enforcement is a welcome step toward ensuring that immigrants and their loved ones can seek critical services without fear that they could be separated from their community," said Avideh Moussavian, director of federal advocacy at the National Immigration Law Center. "ICE and CBP destabilize and undermine the health and well-being of all community members when immigration officers go after people dropping their kids off at school, seeking health care, participating in rallies, or attending services at their place of worship."

"The new policy recognizes the need to prevent this by protecting spaces where children gather, where social services, disaster or emergency relief are provided, and by creating a reporting requirement that will help hold immigration enforcement agencies accountable," Moussavian said. "This new policy is a testament to years of advocacy and organizing to make many areas – including schools, hospitals, and other places that provide critical, sometimes life-saving services that support our collective well-being – off limits to ICE and CBP.

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"While we recognize the significance of these changes, we remain deeply concerned by the administration's dangerous reliance on the discretion of agents who have long operated in a culture of cruelty and impunity," Moussavian added.

"We urge the administration to act swiftly to ensure that all relevant personnel are trained on this policy and can start to comply immediately. We will be monitoring closely to make sure that the new policy is implemented fairly and humanely so that our communities can begin to heal from the specter of immigration enforcement."

"Today's announcement is an important step forward in limiting abusive immigration enforcement actions that have long been responsible for spreading fear in immigrant communities and preventing people from accessing vital services," said Naureen Shah, senior policy counsel for the American Civil Liberties Union. However, Shah said that while the new directive "has great potential, it could also be circumvented by agents whom the agency continues to rely on to unilaterally make complex, sensitive judgments about the applicability of the policy."

"Time and again, we have seen individual ICE and CBP agents, motivated by animosity toward immigrants, distort and shirk intended reform," Shah said. "DHS needs to take further steps to ensure it can detect and address abuses, including prohibiting its agents from blocking public recording or documentation of CBP and ICE agents' behavior and presence in protected areas. DHS should also make its data on enforcement actions at or near these protected areas publicly available."

During the Trump administration, ICE agents began making arrests inside areas that were previously considered "protected" including courthouses and hospitals, and arrested immigration advocates, leading to criticism from civil rights groups and moves by city and state officials to limit federal access to certain sites.

ICE agents defended the practice, arguing that courthouses weren't protected, but the U.S. Commission on Civil Rights said that arrests at courthouses "instills needless additional fear and anxiety within immigrant communities, discourages interacting with the judicial system, and endangers the safety of entire communities."

In 2017, President Donald Trump issued an executive order that eliminated existing enforcement priorities and defined "all removable aliens" as targets for deportation. While the Trump administration sought to remove thousands of people by eliminating priorities, removals by ICE never rose above 100,000 per year—less than half of the level of President Barack Obama's first term—largely because of court backlogs and decreasing cooperation from state and local authorities.

Then-Attorney General Jeff Sessions outlined the administration's approach in a widely-criticized speech in Nogales, Ariz., where he called the border "ground zero" in a fight against criminal gangs and international cartels. "For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era," Sessions said. "This is the Trump era."

Sessions' speech was criticized by Tucson Police Chief — and likely future Commissioner of CBP — Chris Magnus, who wrote in the New York Times the Trump administration's would "compromise public safety by reducing community confidence in law enforcement."

Later, as COVID-19 cases began hitting the U.S., federal officials had to define the agency's practices outside of hospitals and COVID-19 testing sites.

In a statement from May 2020, ICE said that during the COVID-19 crisis, agents "will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors' offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances."

"Individuals should not avoid seeking medical care because they fear civil immigration enforcement," the agency said.

In Tucson, CBP had to respond to criticism over the presence of Border Patrol vehicles parked near the COVID-19 testing site at Banner University Medical Center in April. After the ACLU of Arizona complained that by parking near the site, people might avoid getting tested at the site, CBP sent out a statement saying that agents were not "conducting enforcement operations at any sensitive locations."

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ICE and CBP agents in Nogales, Arizona in 2018.

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