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Fact check: What are the current ICE deportation priorities under the Biden administration?
Executive Summary
The core claim is that the Biden administration’s current ICE deportation priorities center on three categories: national security threats, current threats to public safety, and threats to border security, as set out in memos from 2021 and reaffirmed by DHS guidance and a September 28, 2023, ICE memo; however, multiple analyses and enforcement data show significant discretion and gaps between written priorities and on-the-ground removals, with critics saying ICE continues to arrest and remove people outside those priority groups [1] [2] [3]. The dispute hinges on policy texts, subsequent court rulings, agency discretion, and enforcement data showing removals increased in FY2024, producing divergent interpretations about whether priorities are effectively limiting deportations [4] [3].
1. What advocates and memos actually claim — a tidy three-part priority framework that policymakers point to
The publicly cited architecture of Biden-era ICE priorities consists of a clear three-part framework: those who pose national security threats, those who pose current threats to public safety, and those who pose threats to border security. That structure appears in the DHS and ICE documents circulated since 2021 and is restated in the September 28, 2023 memorandum identified as DM-23-04, which is commonly relied upon as the authoritative description of current enforcement priorities [1] [5]. Proponents of the framework present it as a way to concentrate limited enforcement resources on individuals deemed most dangerous or immediately relevant to border control, and paperwork and internal directives reflect that prioritization as a governing baseline for ICE arrests and removal actions [1] [5]. The emphasis in those texts on prosecutorial discretion is explicit, signaling that frontline officers are expected to weigh case-specific factors against those categories when deciding actions [6].
2. What enforcement data shows — more removals and instances that test the policy’s limits
Government statistics and watchdog reporting show that enforcement outcomes do not always align neatly with the priority framework. ICE’s own published Enforcement and Removal Operations data for FY2024 reported a nearly 70% increase in removals in selected quarters compared with FY2023, and advocates have used those figures to argue the agency is conducting broader enforcement than the priority memos imply [3]. Independent analyses from organizations such as the American Immigration Council document instances where ICE arrests and deportations included people who did not fall clearly within the three priority categories, suggesting either expansive interpretation of categories like “public safety” or active deviation from written guidance [2] [7]. The raw numbers and case examples together indicate that written priorities have not functioned as an absolute ceiling on removals, and that enforcement trends merit scrutiny beyond the policy texts.
3. Court rulings and internal memos changed the legal landscape — producing shifts, restatements, and reimplementations
Legal decisions and agency responses have repeatedly reshaped which written guidance was enforceable. The September 2021 “Mayorkas Memo” and related guidance faced judicial challenges, and a Texas court ruling in 2022 disrupted its effect, prompting subsequent reissued directives and reimplementations in various forms, including CBP actions and the 2023 ICE memo [4] [5]. These back-and-forth developments produced layered documentary authority: earlier memos, court rulings, and later reissued directives — each with different scope and legal footing. The result is a patchwork of guidance where agencies claim prioritization, courts have sometimes limited or vacated parts of those claims, and newer memoranda have sought to reassert enforcement priorities while preserving prosecutorial discretion [4] [6]. Observers note this legal churn complicates straightforward claims about what is “current” policy in practice.
4. Discretion, accountability, and competing interpretations — why advocates differ sharply
Analysts and advocates diverge on whether ICE is following or flouting priorities because enforcement discretion inherently allows broad interpretation. Proponents of the department’s approach argue that the memos empower officers to focus on serious threats while still removing dangerous individuals and those encountered at the border, aligning with the three categories as operational reality [1] [6]. Critics, including immigration advocacy groups and researchers, document patterns where discretion appears to have been exercised expansively or where administrative practices led to arrests and removals of people not evidently within those priority categories [2] [7]. Both positions draw on the same set of documents and data but emphasize different signals: formal policy texts versus operational outcomes, meaning the debate often reflects organizational priorities and institutional interests as much as textual fidelity.
5. Bottom line: policy texts, enforcement data, and practical effects all matter — what to watch next
The concrete takeaway is that the Biden administration’s formal ICE priorities are the three-category framework widely published in 2021–2023 memos, but actual enforcement has not been constrained to those categories in all instances, as shown by FY2024 removal increases and documented case examples [1] [3] [2]. Watch for further updates in internal directives, public statistical releases, and court rulings that will shape both the letter and the practice of priorities; accountability measures like internal audits or congressional oversight could alter how discretion is exercised. Stakeholders should treat written priorities as necessary but insufficient to predict outcomes: enforcement data and legal developments provide the clearest evidence of how priorities operate in practice [3] [4].