How did ICE define “criminal” during the Obama administration versus later administrations?
Executive summary
ICE under Obama formally prioritized removal of noncitizens who were national-security threats, recent border crossers, or those with criminal convictions or gang involvement—framed as “priorities” rather than a blanket targeting of all undocumented people [1] [2]. Later administrations loosened or eliminated those internal prioritizations: the Trump administration ordered broader enforcement that treated unlawful presence itself as a target, while Biden issued interim guidance restoring many Obama-era prosecutorial-discretion principles but with new oversight and caveats [3] [1] [1].
1. How “criminal” was defined in Obama-era guidance
The Obama ICE guidance under Director John Morton established a three-tier prioritization that placed national-security threats, recent border crossers, and noncitizens convicted of crimes or involved in gang activity at the top of enforcement attention, which operationally treated people with criminal convictions as the primary “criminals” for interior enforcement [1] [2]. Those memoranda and subsequent practice emphasized targeting those “who posed a threat to national security or public safety,” and incorporated serious misdemeanors into lower-priority considerations—signaling discretion rather than automatic removal for minor infractions [1] [1]. Independent reporting and DHS statements from the period show the administration also removed large numbers of people with criminal convictions, and promoted programs such as Secure Communities to identify those with arrests or convictions for referral to ICE [4] [2].
2. The Trump-era break: criminality broadened to unlawful presence
The Trump administration abandoned that prioritization in favor of wider enforcement that treated unlawful entry or presence itself as a primary basis for arrest and removal, instructing ICE to target anyone believed to be in the country illegally rather than focusing narrowly on convicted criminals [3]. Former ICE officials and contemporaneous analyses described a shift from “worst first” targeting toward large-scale raids and broader sweeps that maximized arrests regardless of individual criminal histories, a tactical and policy shift away from the Obama-era definition of “criminal” [5] [5]. Observers noted that under Trump, the agency’s mission was expanded by executive orders and rhetoric that endorsed aggressive, nationwide operations that often captured people “in the wrong place at the wrong time,” not just those with convictions [3] [6].
3. Biden’s recalibration: returning discretion with constraints
The Biden administration issued interim ICE guidance in January and a supplemental memo in February that largely restored Obama-era prosecutorial discretion and prioritized public-safety threats, recent border crossers, and individuals engaged in gang activity, while explicitly tightening preapproval and oversight for removals of non-priority individuals [1]. Those memo changes reintroduced a barrier: removal of non-priority noncitizens often required field director preapproval and added weekly reporting and oversight, reflecting a hybrid approach that reinstated prioritization but kept stronger management controls [1]. Reporting indicates the Biden-era guidance omitted mention of some lesser criminal convictions that Obama had included, signaling a subtle narrowing in some respects even as it re-emphasized discretion [1].
4. Numbers and real-world outcomes complicate neat labels
Despite policy prioritization, statistical outcomes under Obama included very large removal totals and a significant share of deportees with no criminal convictions in some years—ICE data and DHS statements note millions of removals and that in certain years about 40% of deported individuals had no criminal conviction, underscoring the distinction between policy intent and operational reality [4] [3]. Migration Policy and other analyses stress that Obama-era shifts also reflected changes in how removals were counted and in enforcement tactics such as Secure Communities, meaning “criminal-focused” policy did not equate to exclusion of non-criminal removals in practice [2] [4].
5. Reading the agendas and competing narratives
Advocacy groups and critics have used the figures and memos to advance contrasting narratives—immigrant-rights advocates stress that even “prioritized” frameworks produced mass removals and family separations, while law-and-order proponents point to large numbers of criminal removals as evidence of public-safety focus [4] [2]. Government statements and internal memos (cited above) are explicit about enforcement priorities but do not fully resolve the gap between policy language and outcomes; reporting by sources such as TRAC and journalists highlights that operational implementation, counting changes, and political directives undercut any single, clean definition of who ICE treated as a “criminal” across administrations [7] [5]. The sources used here document official definitions and major shifts but cannot fully adjudicate how individual agents applied discretion in every case.