DHS Rescinds “Sensitive Locations” Enforcement Policy

On January 21st, the US Department of Homeland Security (DHS) issued an official statement on two directives aimed at expanding the scope of law enforcement to end the abuse of humanitarian parole.

Benjamin Huffman, Acting Secretary of the DHS, issued the directives, which he claimed were essential to end the invasion of the US through the southern border at the start of President Trump’s second term in the White House. Trump’s administration seeks to empower law enforcement agencies to protect Americans.

What Each Directive Aims to Achieve

On one hand, the first directive sought to rescind guidelines issued by Biden’s administration in 2021 for Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) enforcement. According to the DHS, these guidelines thwart law enforcement efforts to protect Americans in or near areas deemed “sensitive locations”.

On the other hand, the second directive seeks to end abuse of humanitarian parole by returning the programme to a case-by-case basis. CBP and ICE are now required to phase out any parole programmes that are not in compliance with the law.

“This action empowers the brave men and women in ICE and CBP to enforce our immigration laws and catch criminal aliens, including rapists and murderers, who have come into our country. Criminals will no longer be able to hide in America’s schools and churches to avoid arrests. The Trump administration will not tie the hands of our brave law enforcement, and instead trust them to use common sense,” Huffman said in the DHS official statement.

The Rescinded Memorandum

The new directive suspended and now supersedes a memorandum issued by Alejandro Mayorkas in 2021 entitled “Guidelines for Enforcement Actions in or Near Protected Areas”. These guidelines established a principle that, to the fullest extent possible, DHS agents and officers could not take enforcement action in or near any locations that would restrain people’s engagement in essential activities or access to essential services. Such a location would have to be categorised as a “protected area”.

Under the 2021 memorandum, the absence of any exigent circumstances meant DHS agents and officers had to seek approval from their agency’s headquarters or an authorised delegate before taking action to enforce immigration laws. 

ICE enforcement actions include apprehension, arrests, inspections, searches, seizures, immigration enforcement surveillance, interviews and the service of charging documents or subpoenas. 

Examples of Protected Areas Under the 2021 Guidelines 

Under the now rescinded memo, examples of sensitive locations or protected areas include:

• Schools, including trade or vocational centres, universities and colleges;
• Places of religious studies or worship;
• Medical or mental health facilities;
• Places where there are ongoing demonstrations, parades or rallies;
• Places where children gather;
• Places where emergency or disaster response/relief is provided;
• Social service establishments; and
• Places where funerals, weddings, graveside ceremonies or other civil or religious ceremonies or observances occur.

However, although the 2021 guidelines expressly stated where DHS agents and officers cannot take enforcement action, they also provided exceptions for when enforcement actions could be taken in or near sensitive locations. Such exceptions included situations involving:

• Imminent risk of death;
• National security threat;
• Physical harm to a person;
• Violence;
• Hot-pursuit circumstances;
• When safe alternative locations did not exist; and
• Cases where there was an imminent risk that evidence material to a criminal case would be destroyed.

In summary, the 2021 guidelines by Biden’s administration were a DHS policy change that revised and consolidated two prior memoranda by Obama’s administration into one DHS policy. The Obama-era memoranda were also issued to CBP and ICE and had a similar treatment to “sensitive locations”. These memoranda were:

• Enforcement Actions at or Focused in Sensitive Locations, an ICE memorandum dated October 24th 2011; and
• US Customs and Border Protection Enforcement Actions at or Near Certain Community Locations, a CBP memorandum dated January 18th, 2013.

What Happens Going Forward?

As DHS rescinds sensitive locations policy, law enforcement officers will be required to exercise discretion and a healthy dose of common sense when enforcing immigration laws. Under the new directive, the DHS doesn’t need to create rules regarding where US immigration laws can and cannot be enforced.

However, the Commissioner of CBP and the Director of ICE may wish to issue further guidelines to assign law enforcement agents and officers on how to exercise appropriate discretion.

“Common Sense” as the New Enforcement Standard

With the DHS enforcement policy change, there are no longer any sensitive locations under DHS policy. Instead, the January 2025 directive gives a general idea of what the new DHS policy entails, at least in the interim.

As Huffman said in the January press release, Trump’s administration is determined not to tie the hand of law enforcement agents. Instead, it expects them to use “common sense” to exercise their enforcement discretion.

An Outcry that the DHS Enforcement Policy Change Undermines Safety

According to a factsheet published by the National Immigration Center, protecting sensitive areas from enforcement actions is essential to ensuring all community members can access basic services and support without fear. 

The Center highlighted that the changes to ICE operations in sensitive locations constitute an attack on immigrant communities’ well-being and undermine safety for all. 

“In the wake of a litany of cruel executive orders targeting immigrants and sanctuary policies, the rescission is especially pernicious in its attempt to make immigrants feel unsafe even in spaces that are the core of civil society,” the factsheet reads in part. 

An article published by law firm Holland & Knight also pointed out that the DHS policy change might have implications for healthcare systems, considering that healthcare facilities are no longer considered sensitive locations protected from ICE enforcement actions. 

According to the article, the change will likely lead to an upsurge in enforcement activities in hospitals, potentially affecting both healthcare providers and patients. They assert that administrators in the healthcare sector will face challenges when navigating their organisations’ obligations and rights during ICE enforcement action, specifically balancing critical healthcare regulatory issues related to patient rights, such as privacy rights.

Source:

DHS Official Statement

References:

NAFSA: Association of International Educators

The Department of Homeland Security

HK Law

National Immigration Law Center

Further Reading:

ACLU Takes on Trump: Legal Battle Over Asylum Rights at the Border!

Anti-Money Laundering Law Boosted in US