The Department of Homeland Security (“DHS”) was created in 2002 and is responsible for, among other things, border security, administration, and enforcement of United States immigration laws. DHS is composed of several agencies, each tasked with a specific responsibility. One of those agencies is the U.S. Immigration and Customs Enforcement (“ICE”). ICE, as evident by its name, focuses on immigration issues. Over the past few months, DHS has issued two memoranda addressing immigration enforcement issues. Specifically, one memo discussed the removal of noncitizens who do not pose a threat to national security, and the other covered raids of workplaces where undocumented immigrants are employed. This post will discuss these documents in more detail.
The Obama administration focused its enforcement priorities on the prosecution of employers who employed undocumented workers. However, ICE also continued to prosecute illegal workers that it encountered during worksite enforcement.
The Trump administration used worksite immigration raids to arrest 700% more employees and employers and increased the number of worksite investigations by over 400% from fiscal year 2017 to fiscal year 2018. In fiscal year 2018, October of 2017 to September of 2018, ICE made 2,304 worksite-related arrests, compared to the 311 arrested during the previous fiscal year, which was prior to a commitment by ICE to “step up its worksite enforcement efforts.” One operation in 2018 resulted in the arrest of 146 employees at a meat processing company in northeast Ohio. That raid was followed by an operation in 2019 in which ICE agents arrested approximately 680 people at food processing plants in Mississippi. The issuance of these two memoranda by the Biden administration signals another change in immigration enforcement priorities.
The September Memorandum
The first memorandum was issued in late September. DHS Secretary Mayorkas instructed ICE agents not to arrest or deport anyone for the sole basis of being in the United States without legal authorization. According to the DHS, this change is the result of a decision to focus immigration enforcement resources in a more targeted way.
The September memorandum prioritizes apprehension and removal of noncitizens “who are a threat to our national security, public safety, and border security.” While this immigration enforcement guidance does not compel action or inaction, the arrest and deportation of undocumented immigrants who have been “contributing members” of the U.S. community, including faith leaders, farmworkers and frontline health workers due to their immigration status, are not the DHS’s priority at this time.
A noncitizen is prioritized for apprehension and removal for several reasons. The first is if they are “engaged in or  suspected of terrorism or espionage.” The second being if they pose “a current threat to public safety, typically because of serious criminal conduct.” Whether a noncitizen poses a current threat to public safety is assessed by the totality of the circumstances. There are both aggravating and mitigating factors that help to determine whether an enforcement action is necessary. Things such as the sophistication of the criminal offense, and if the noncitizen had a serious prior criminal record will weigh in favor of an enforcement action. While things such as lengthy presence in the United States and the impact of removal on family will weigh in favor of not taking enforcement action. Third, is a noncitizen “who poses a threat to border security is a priority for apprehension and removal.” A noncitizen is considered a threat if they are apprehended “while attempting to unlawfully enter the United States” or if “they are apprehended in the United State after unlawfully entering after November 1, 2020.”
DHS also wants to ensure that immigration enforcement authority is not used as a way for unscrupulous employers to exploit their employees by “suppressing wages, maintaining unsafe working conditions, and quashing workplace rights.” The guidance document recommends that “a noncitizen’s exercise of workplace rights” or their “service as a witness in a labor  dispute” should be a mitigating factor when exercising prosecutorial discretion.
Additionally, DHS will be providing training to its personnel to successfully carry out these guidelines. DHS will also be implementing a review process to make sure that all of the personnel’s enforcement decisions are reviewed during the first 90 days of implementation. This guidance became effective on November 29, 2021, for more information about the effect that guidance documents have, click here.
The October Memorandum
On October 12, 2021, DHS Secretary Mayorkas issued a department-wide memorandum on enforcement objectives, goals, priorities, and methods. The document states that DHS will be “focusing [its] worksite enforcement efforts on unscrupulous employers” and that DHS will “no longer conduct mass worksite operations,” commonly referred to as ICE raids. The memorandum also argues that unscrupulous employers are not only harming and exploiting undocumented workers, but are also unfairly impacting the entire American labor market and their law-abiding competitors.
The memorandum lays out three general goals: (1) “reduce the demand for illegal employment by delivering more severe consequences to exploitative employers”; (2) “increase the willingness of workers to report violations of law”; and (3) increase coordination between various labor agencies, including the Department of Homeland Security, the Department of Labor, the Department of Justice, the National Labor Relations Board, and state labor agencies. To help achieve these goals, the memorandum instructs immigration agency officials to develop policy proposals by December 11, 2021. In addition, the document directs ICE, Customs and Border Protection, and the United States Citizenship and Immigration Services to develop and update policies to enhance DHS’s impact in supporting the enforcement of employment and labor standards.
The proposals must include policies that would help encourage witnesses and victims of labor trafficking and exploitation to come forward and cooperate with law enforcement. Noncitizens should be encouraged to report things such as suppressed wages or unsafe working conditions without the fear of being deported simply because they are unauthorized. Those proposals should “provide for the consideration of deferred action, continued presence, parole, and other available relief for noncitizens” who report abuses. Meaning that if a noncitizen comes forward to report forms of exploitation or labor trafficking, they may face different consequences than deportation that will allow them to remain in the United States. Additionally, such policies should also ensure that noncitizens who assist in these labor investigations are generally not placed in immigration proceedings during the investigation or prosecution of labor trafficking and exploitation violations.
The agencies must also develop strategies to ensure that E-Verify, a computer system employers use to confirm the eligibility of their employees to work in the United States, is not used to punish or suppress unauthorized workers from reporting unlawful labor practices. Unlawful labor practices include substandard wages, unsafe working conditions, and other forms of worker exploitation.
While agencies have until December 11 to develop policy proposals and measures, the memorandum also contained immediately effective guidance. As of October 12, 2021, DHS has instructed that no more mass worksite operations will be carried out to search for unauthorized workers. Additionally, the Department of Labor requested that DHS exercise prosecutorial discretion for “workers who are victims of, or witnesses to, workplace exploitation.” The guidance document states that whether discretion is given depends on each individual request and “should be considered on a case-by-case basis, weighing all relevant facts and circumstances.”
These orders are part of a shift in strategy under the Biden administration that emphasizes a focus on businesses and employers that violate labor laws instead of noncitizen workers. In addition to halting mass raids, it supports the idea of exercising prosecutorial discretion to spare workers from charges if they witness or are the victims of abuse or exploitation in the workplace.
To view the October memorandum, click here.
To view the September memorandum, click here.
For more National Agricultural Law Center resources on labor, click here.