Changing Priorities in Deporting Undocumented Noncitizens

And what to do when ICE comes knocking

By Amy White | Reviewed by Canaan Suitt, J.D. | Last updated on December 19, 2023 Featuring practical insights from contributing attorneys Tsui H. Yee and Jennifer Oltarsh

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U.S. immigration policies and enforcement have shifted many times over recent years. One of the most contested areas of immigration policy is how to prioritize undocumented noncitizens for deportation by U.S. Immigration and Customs Enforcement (ICE), a government agency within the Department of Homeland Security (DHS).

In 2015, under President Obama’s administration, immigrants with felonies or serious misdemeanors were prioritized for deportation. 

January 2017: Deportation Priorities Under the Trump Administration

Less than two years later, on January 25, 2017, President Donald Trump signed Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which created a new list of priorities that greatly expanded the scope of deportation enforcement.

The executive order listed seven categories of immigrants, including individuals who had “committed acts that constitute a chargeable criminal offense.” The order also required Immigration and Customs Enforcement (ICE) to hire 10,000 additional enforcement and removal officers. 

The immigrant community is afraid of ICE just showing up at their home, at their job, at their children’s schools, at their church, detaining them and putting them in removal proceedings

Tsui H. Yee

Impacts of the 2017 Executive Order

Of those changes’ impacts, New York immigration lawyer Tsui Yee said, “Some of my clients have just dropped off the map with communication to me. There is increased fear that if they come forward now to get their papers in order, they’ll be immediately deported.” 

Yee said the increased enforcement is affecting travel, too. “There are travelers who have had no problem getting in and out of the U.S. for years,” she says. “And all of a sudden, customs and border protection officers are looking for reasons to bar people from entering.”

For individuals with family members who were either undocumented or had fallen out of status, the problem hit closer to home. “The immigrant community is afraid of ICE just showing up at their home, at their job, at their children’s schools, at their church, detaining them and putting them in removal proceedings,” Yee says. “I have a percentage of clients who have lived in the U.S. for many years and are trying to get all their documents in order, but there is a limitation in how far and how quickly you can go in the process. It’s not as simple a thing as waiting your turn in line. Sometimes, the line is decades long.”

Jennifer Oltarsh, of New York’s Oltarsh & Associates said the change in enforcement mechanics within the immigration system was vast. “The list of [individuals] who are priorities is much more encompassing. You could have someone who committed a minor crime 10 years ago, has since married a U.S. citizen, and has children, be bumped to top priority. Even if it was an illegal, dismissed arrest—people are arrested inappropriately, either at the wrong place at the wrong time or falsely accused—those people are now a top priority, too.”

The biggest mistake someone can make is just opening the door. That can be taken as permission to enter and search the home. If an ICE agent arrives at your door, clearly state, ‘Who is there?’ and require that the agent slip the warrant under the door.

Jennifer Oltarsh

January 2021: Deportation Priorities Under the Biden Administration

On January 20, 2021, President Biden signed an executive order rescinding the Trump administration’s deportation policies. In September 2021, the DHS issued new guidelines narrowing the priorities for deportation.

The new guidelines prioritized the apprehension and removal of noncitizens who were either:

  1. A threat to national security;
  2. A threat to public safety; or
  3. A threat to border security.

Texas and Louisiana sued over the new DHS guidelines, arguing that they prevented ICE officers from doing their job. The case, United States v. Texas, reached the U.S. Supreme Court, which sided with the Biden administration in June 2023, finding that the states lacked standing to challenge the federal executive branch’s power to set and enforce immigration policies.

Know How ICE Officers Must Deal with You in Immigration Matters

Immigration attorneys Yee and Oltarsh say that in addition to knowing how to deal with ICE, it’s important to know how ICE is mandated to deal with you.

For starters, ICE agents can’t detain just anyone. “The [arrests] aren’t always properly executed: wrong person, wrong address,” Yee says. “I’ve had people taken in by ICE because they just happened to come across my client while looking for someone else.”

To that end, Oltarsh offers a couple of tips for answering the door. “The biggest mistake someone can make is just opening the door,” she says. “That can be taken as permission to enter and search the home. If an ICE agent arrives at your door, clearly state, ‘Who is there?’ and require that the agent slip the warrant under the door.” 

The 2021 DHS guidelines state that officers must use their discretionary authority in a way that protects the legal rights and civil liberties of noncitizens. Officers cannot use immigration enforcement actions as an instrument of retaliation.

Summarizing the steps to take if an ICE officer is at your door, the attorneys say:

  • Stay calm. Do not try to run, and don’t lie;
  • Ask for a warrant to be slipped under the closed door;
  • Do not allow an ICE officer in if they state they are looking for an individual who does not live in your home.
  • Consult an attorney if an order of deportation has been levied against you.

Find an Experienced Immigration Attorney

If you or someone you know is facing immigration issues, it’s best to contact an immigration law firm and seek legal advice from an experienced attorney. 

For more information on this area of immigration law, see our immigration overview.

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