Fact check: How did DHS and ICE operational priorities and enforcement memos change under Alejandro Mayorkas in 2021?

1. How the 2021 Memos Rewrote Priorities — A Clear Shift Toward Discretion and Protected Areas

The September 2021 guidance from DHS under Secretary Mayorkas formalized three core enforcement priorities: national security, public safety, and border security, instructing case-by-case assessment and the exercise of prosecutorial discretion rather than blanket enforcement ^[1]. Complementary memos issued in 2021 and early 2021 reinforced that enforcement actions should avoid interfering with access to essential services by establishing the concept of “protected areas” — schools, medical facilities, places of worship, and social services — and directing officers to weigh whether an enforcement action would restrain access ^{[2] [3]}. That guidance explicitly superseded some prior memoranda and set a foundational policy principle for field officers to consider both public-interest impacts and individual circumstances before proceeding with arrests or removals ^[3]. The documents thus represent an administrative pivot from broad enforcement toward targeted enforcement anchored in prosecutorial discretion ^{[4] [1]}.

2. Interim ICE Guidance and Agency Coordination — Messaging and Reimplementation Signals

ICE issued an interim February 2021 memo aligning removal priorities with Acting Secretary guidance and President Biden’s Executive Order 13993, directing ICE personnel to prioritize limited resources on threats to national security, public safety, and border security and to use discretion ^[4]. Later, related guidance was reimplemented via a July 2023 CBP memo that referenced the September 2021 Guidelines, signaling intra-agency attempts to maintain consistent enforcement priorities across DHS components and to provide clarity to officers on the ground ^{[5] [6]}. Those follow-on documents emphasized accessibility and transparency in implementing discretion guidance and instructed leaders at CBP and ICE to operationalize the priorities within their enforcement posture ^[6]. The record shows an administrative effort to codify and reassert the 2021 prioritization framework across DHS components, indicating recognition that policy durability required repeated guidance to field offices ^{[5] [6]}.

3. Evidence of Divergence Between Policy and Practice — Enforcement Actions Labeled “Other”

Multiple accounts in the provided record indicate that despite clear prioritization language, ICE activity did not always align with the stated triage. Analysis documents show over 35% of enforcement actions labeled as “other”, meaning they did not fall under the enumerated national security, public safety, or border security priorities, suggesting substantive deviations in practice ^[7]. Critics seized on reported declines in arrests and removals as evidence that the memos constrained enforcement, predicting broader border impacts and asserting weakened rule-of-law outcomes ^[8]. The divergence between prescribed policy and observed enforcement patterns highlights the difficulty of translating discretionary frameworks into consistent operational behavior and suggests that implementation fidelity varied across offices and time ^{[7] [8]}.

4. Legal and Political Pushback — Court Rulings and Critic Arguments

The enforcement-priority framework faced litigation and political critique. The U.S. Supreme Court ultimately found that Texas and Louisiana lacked standing to challenge the guidance, effectively allowing the Biden administration’s prioritization approach to remain intact as a legal matter ^[9]. Nevertheless, critics characterized the memos as an abdication of enforcement responsibility, citing data showing decreases in removals and arrests and arguing policy choices, not just resource limits, drove those trends ^[8]. The court outcome resolved one avenue of legal contestation by declining to enjoin the guidance, but the continued public and congressional scrutiny documented in the sources reflects ongoing political contention over whether the guidance appropriately balances enforcement and humanitarian or civil considerations ^{[9] [8]}.

5. Big Picture: Tradeoffs, Operational Complexity, and Ongoing Reassessments

Taken together, the supplied materials depict a deliberate administrative decision in 2021 to prioritize certain threats and to shield access to essential services by designating protected areas, coupled with follow-on memos intended to align ICE and CBP operations behind that framework ^{[2] [4] [6]}. The resulting pattern of enforcement, however, showed meaningful departures from the stated priorities in a substantial share of cases and provoked vocal criticism that the policy reduced enforcement output ^{[7] [8]}. The Supreme Court’s procedural ruling left the policy structurally intact even as DHS and CBP issued reimplementation guidance to reinforce application ^{[9] [5]}. The supplied record underscores a tension between centralized policy priority-setting and decentralized operational realities, with legal, political, and administrative responses continuing to shape how the 2021 priorities have been interpreted and applied.