What specific DHS or ICE memoranda set enforcement priorities under each administration since 2017 and how do their texts differ?
Executive summary
Since 2017, enforcement priorities were driven first by the Trump administration’s February 20, 2017 DHS memorandum (implementing Executive Order 13768) that broadly narrowed prosecutorial discretion and rescinded prior priority exemptions (John Kelly memo and related ICE directives) [1] [2] [3]. The Biden administration countered with President Biden’s January 20–25, 2021 directives and Acting DHS Secretary David Pekoske’s January 20, 2021 interim review memo, followed by Secretary Mayorkas’s permanent Guidelines on September 30, 2021 and ICE’s Doyle memo to OPLA in April 2022; subsequent litigation and court rulings then forced periodic reinstatements and modifications [4] [5] [6] [2].
1. Trump’s 2017 memoranda: "Enforce against all removable noncitizens"
The Trump-era enforcement architecture began with President Trump’s executive orders in January 2017 directing DHS to expand removals and interior enforcement and Secretary John Kelly’s February 20, 2017 memorandum implementing that executive order, which directed ICE and CBP to prioritize broad enforcement, reinstate Secure Communities, terminate the Priority Enforcement Program (PEP), expand 287(g) partnerships, and instruct officers that prosecutorial discretion should not create exempt classes of noncitizens [2] [1] [3]. ICE operational guidance under Trump reinforced that officers should take enforcement action consistent with those priorities and deprioritized prior internal limits on whom to arrest or remove [7] [2].
2. Biden’s first actions: revocation and interim review (Jan 20–25, 2021)
On his first days in office President Biden revoked the 2017 Executive Order on interior enforcement and directed a review of civil immigration enforcement to balance border security, public safety, and humanitarian considerations, after which Acting DHS Secretary David Pekoske issued a January 20, 2021 memorandum ordering a department-wide review and issuing interim civil enforcement guidelines that narrowed the pool of noncitizens prioritized for enforcement pending the review [4] [5]. ICE followed with interim guidance that limited whom agents should prioritize for arrest and removal while the department completed its review [4] [5].
3. The Biden permanent guidance and ICE prosecutorial discretion memos (Sept 2021–Apr 2022)
DHS Secretary Alejandro Mayorkas issued the Guidelines for the Enforcement of Civil Immigration Law on September 30, 2021, which established civil immigration enforcement priorities and emphasized prosecutorial discretion; ICE’s Office of the Principal Legal Advisor then issued the Doyle memorandum (April 3, 2022) providing guidance to OPLA attorneys on exercising prosecutorial discretion consistent with the DHS priorities [5] [6]. Those texts formalized a narrower enforcement scope, identified priority groups, and supplied legal guidance for cancellation, nonreferral, and dismissal decisions in immigration proceedings [5] [6].
4. Litigation, courts, and the 2023 reinstatement dynamics
The Biden-era guidance immediately prompted lawsuits from states; litigation produced conflicting rulings, and the June 2023 Supreme Court decision in United States v. Texas led to operational adjustments—ICE and DHS signaled plans to reinstate civil enforcement priorities as set out in the 2021 Guidelines and internal ICE updates in mid‑2023 reflected reinstatement of certain priorities and OPLA memoranda like Doyle’s being relied upon again [5] [8]. The legal record shows these memoranda’s force has been shaped not only by administration intent but also by federal court decisions [5] [8].
5. ICE-level memoranda and field implementation: operational directives and ERO notes
Beyond DHS secretarial memos, ICE issues component-level directives that translate priorities into on-the-ground practice; ICE’s internal memos have told ERO officers to prioritize removable noncitizens with criminal convictions and to take enforcement consistent with DHS guidance, and ICE stakeholder updates in 2023 documented reinstatements or modifications to ERO priorities after court rulings [7] [8]. ICE’s public memo repository and practice alerts from practitioner groups like AILA summarize how those ICE memos operationalize DHS priorities for arrests, detainers, and NTAs [7] [4] [6].
6. How the texts differ: philosophy, scope, and discretion
Textually and conceptually the 2017 Trump-era documents emphasize an expansive, categorical enforcement posture—rescinding discretionary exemptions, ordering enforcement against essentially all removable noncitizens, expanding 287(g), and restoring Secure Communities—whereas the Biden-era documents (Pekoske interim memo, Mayorkas Guidelines, Doyle memo) restore and formalize prosecutorial discretion, narrow prioritized categories, and give legal guidance to exercise non‑prosecution or dismissal in many cases; the difference is thus a shift from categorical enforcement toward prioritized, case‑by‑case discretion, with ICE memoranda translating those philosophies into operational rules [1] [2] [4] [5] [6].
7. Conclusion and limits of the record
The timeline shows clear cycles: Trump’s 2017 directives expanded and codified broad interior enforcement [1] [2], Biden’s 2021–2022 memoranda narrowed priorities and emphasized prosecutorial discretion [4] [5] [6], and subsequent litigation forced DHS and ICE to tweak implementation and occasionally reinstate earlier guidance [5] [8]; this account relies on publicly posted DHS and ICE memoranda and secondary summaries in the provided reporting, and does not assert internal, non‑public operational practices beyond those documents [7] [4].