How does ICE determine which illegal immigrants that are not criminals to deport

Executive Summary — What actually decides whether a non‑criminal undocumented person is removed?

ICE’s written enforcement priorities instruct officers to focus on national security, border security, and public safety and to exercise prosecutorial discretion in individual cases, weighing aggravating and mitigating factors ^{[1] [2] [3]}. Independent analyses and recent data show a gap between policy and practice: large portions of ICE actions have targeted people who do not clearly meet those priorities, and the agency’s use of expedited processes and broad enforcement directives has expanded the pool of non‑criminals vulnerable to removal ^{[4] [5] [6]}.

1. The official rulebook that promises selective enforcement

Federal guidance reissued and summarized across 2021–2024 frames ICE’s job as prioritizing serious threats—terrorism, espionage, violent felonies, recent border crossers, and significant immigration-system abusers—while directing officers to use prosecutorial discretion for others. The September 2021 interim priorities and later reimplementation memos instruct ICE to consider criminal convictions’ seriousness and recency, family and community ties, rehabilitation, and civil‑liberties protections when deciding whether to arrest, detain, or remove someone ^{[2] [1] [7]}. These documents explicitly say they do not categorically prohibit arrest or removal outside the priorities but create a presumption that limited resources should focus on the enumerated threats; that presumption is the formal mechanism ICE uses to decide which non‑criminals may nonetheless be left alone ^[1].

2. Prosecutorial discretion in practice: memos, directives and caveats

Guidance from DHS and ICE—including the Mayorkas memo and the Doyle memo—lays out how attorneys and enforcement officers should apply prosecutorial discretion, offering tools to seek deferred action, stay removal, or favorable charging decisions for people with strong mitigating factors such as long U.S. presence, family ties, or military service ^[3]. The memos also include victim‑centered, parental‑interest, and worksite enforcement directives that can pull cases toward or away from removal depending on how they are applied. Discretion is not binary; it depends on case files, local leadership, and available alternatives to removal, which means outcomes can vary considerably across field offices and over time ^{[3] [7]}.

3. Empirical gap: enforcement actions that don’t match priorities

Independent reviews and reporting document a persistent mismatch between policy priorities and enforcement outcomes. A 2025 review by an advocacy group and reporting by national outlets found that a substantial share of ICE arrests and detainers fell into an “other” category—people who did not clearly meet the high‑priority definitions—suggesting field discretion and operational directives have resulted in many non‑criminal detentions and removals ^{[4] [5]}. The empirical record shows ICE has carried out large numbers of actions against individuals without serious criminal histories, and in some reporting the majority of book‑ins were for immigration or minor offenses, not violent crime ^{[5] [8]}.

4. Rapid procedures and due‑process risks that broaden removals

Expanded use of expedited removal and related fast‑track mechanisms increases the chance that non‑criminals will be removed without meaningful judicial review. Reporting and legal analyses warn that when ICE or CBP rely on on‑the‑spot credibility thresholds, two‑year continuous presence tests, or broadened expedited‑removal eligibility, people who could have legitimate claims or lawful statuses may be pushed out before counsel or hearings can be secured ^[6]. Speed and administrative expansion function as force multipliers for enforcement: they lower the barrier to removing more people and raise the risk of errors, especially among those lacking counsel or documentation ^[6].

5. Bottom line: law, policy and practice collide — who is actually at risk?

Legally and on paper, ICE is supposed to prioritize serious public‑safety and national‑security threats and to use discretion for others; memoranda and directives provide frameworks for individualized relief and non‑removal ^{[1] [3]}. Empirical reviews and reporting from 2024–2025 document that field application, expedited processes, and administrative priorities have instead led to many actions against non‑criminals, creating a significant gap between policy intent and operational reality ^{[4] [5] [6]}. The decisive factors for any individual remain the interplay of national priorities, local enforcement choices, the presence or absence of aggravating/mitigating circumstances, and whether expedited administrative procedures are applied ^{[2] [7]}.