On Oct. 27, 2021 Secretary of Homeland Security Alejandro N. Mayorkas issued a new, comprehensive policy to guide Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions in or near protected areas, replacing previous sensitive locations guidance. The first-ever policy for both ICE and CBP provides an expanded and non-exhaustive list of protected areas, including new designations such as places where children gather, disaster or emergency relief sites, and social services establishments.
- Guidelines for Enforcement Actions in or Near Protected Areas Memo
- October 27, 2021: Secretary Mayorkas Issues New Guidance for Enforcement Action at Protected Areas
- October 12, 2021: DHS Releases Worksite Enforcement Strategy to Protect the American Labor Market, Workers, and Worksite Conditions
- September 30, 2021: Secretary Mayorkas Announces New Immigration Enforcement Priorities
Q: What does the Department of Homeland Security mean by the term “protected area”?
- A “protected area” is a location that, based on the essential services or activities that occur there, is generally protected from enforcement actions by ICE and CBP. The policy provides a non-exhaustive list of protected areas based on the types of activities that take place there, the importance of those activities to the well-being of people and the communities of which they are a part, and the impact that an enforcement action by ICE or CBP would have on people’s willingness to be there and receive or engage in the essential services or activities that occur there.
- Some examples of protected areas include:
- A school, such as a pre-school, primary or secondary school, vocational or trade school, or college or university.
- A medical or mental healthcare facility, such as a hospital, doctor’s office, health clinic, vaccination or testing site, urgent care center, site that serves pregnant individuals, or community health center.
- A place of worship or religious study, whether in a structure dedicated to activities of faith (such as a church or religious school) or a temporary facility or location where such activities are taking place.
- A place where children gather, such as a playground, recreation center, childcare center, before- or after-school care center, foster care facility, group home for children, or school bus stop.
- A social services establishment, such as a crisis center, domestic violence shelter, victims services center, child advocacy center, supervised visitation center, family justice center, community-based organization, facility that serves disabled persons, homeless shelter, drug or alcohol counseling and treatment facility, or food bank or pantry or other establishment distributing food or other essentials of life to people in need.
- A place where disaster or emergency response and relief is being provided, such as along evacuation routes, where shelter or emergency supplies, food, or water are being distributed, or registration for disaster-related assistance or family reunification is underway.
- A place where a funeral, graveside ceremony, rosary, wedding, or other religious or civil ceremonies or observances occur.
- A place where there is an ongoing parade, demonstration, or rally.
Q: What is an enforcement action?
- Enforcement actions by ICE or CBP covered by this policy include, but are not limited to, arrests, civil apprehensions, searches, inspections, seizures, service of charging documents or subpoenas, interviews, and immigration enforcement surveillance.
- This guidance does not apply to matters in which enforcement activity is not contemplated. This includes activities such as obtaining records, documents, and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in Student and Exchange Visitor Program (SEVP) compliance and certification visits, guarding or securing detained persons, or participating in official functions or community meetings.
- This policy also does not apply to controlled deliveries that conclude in close proximity to a protected area, enforcement actions conducted at DHS facilities or offices regardless of location, or operations that are for the health or welfare of an individual in DHS custody, such as transport to or custodial monitoring at a hospital or medical office.
Q: How is this different from previous sensitive location memos? What is new?
- For the first time, DHS will have one single coherent policy to guide enforcement actions by ICE and CBP in or near protected areas.
- The change in name, from “sensitive locations” to “protected areas,” is to provide a more precise understanding that certain areas are inherently in need of special consideration. Rather than only being “sensitive” they rise to a level of being protected because of the functions performed in such locations and the people those facilities serve, such as children, survivors of domestic violence, and worshippers.
- This memo provides greater clarity on what types of locations are protected areas and which kinds of enforcement actions should generally be avoided there and guides the workforce in the exercise of judgment to determine what additional areas should be protected.
Q: Will enforcement actions ever occur in or near protected areas?
- Enforcement actions may occur in or near protected areas in limited circumstances but will generally be avoided.
- The following are some examples of limited circumstances under which an enforcement action may need to be taken in or near a protected area:
- The enforcement action involves a national security threat.
- There is an imminent risk of death, violence, or physical harm to a person.
- The enforcement action involves the hot pursuit of an individual who poses a public safety threat.
- The enforcement action involves the hot pursuit of a personally observed border-crosser.
- There is an imminent risk that evidence material to a criminal case will be destroyed.
- A safe alternative location does not exist.
Q: When may an enforcement action be carried out in or near a protected area without prior approval?
- Absent exigent circumstances, an Agent or Officer must seek prior approval from their Agency’s headquarters, before taking an enforcement action in or near a protected area.
- Even when exigent circumstances exist, to the fullest extent possible, any enforcement action in or near a protected area should be taken in a non-public area, outside of public view, and be otherwise conducted to eliminate or at least minimize the chance that the enforcement action will restrain people from accessing the protected area.
Q: Are protected areas located along international borders also protected?
- Protected areas located along the borders are generally protected from enforcement actions, similar to protected areas further from the borders. However, an enforcement action in or near a protected area that involves the hot pursuit of a personally observed border crosser is permitted.
- As a practical matter, ports of entry and Border Patrol stations are not in or near protected areas; therefore, enforcement actions would presumptively proceed as normal and not be impacted by the protected areas policy.
Q: Are courthouses protected areas?
- Courthouses do not fall under ICE or CBP’s previous policies concerning enforcement actions at or focused on sensitive locations, nor do they fall within the protected areas memorandum issued today. However, the April 27, 2021, Memorandum from Tae Johnson, ICE Acting Director, and Troy Miller, CBP Acting Commissioner, entitled “Civil Immigration Enforcement Actions in or Near Courthouses” remains in effect. Enforcement actions at courthouses will only be executed in limited circumstances against individuals falling within the public safety priorities of DHS’s civil immigration enforcement priorities. Such enforcement actions will, absent exigent circumstances, not lead to arrest of non-targeted individuals and will, wherever practicable, take place outside of public areas of the courthouse.
Q: Where should I report a DHS enforcement action that I believe may be inconsistent with these policies?
- There are a number of locations where an individual may lodge a complaint about a particular DHS enforcement action that may have taken place in violation of the protected areas policy. You may find information about these locations, and information about how to file a complaint, on the DHS, CBP, or ICE websites.
- You may contact ICE Enforcement and Removal Operations (ERO) through the Detention Reporting and Information Line at (888) 351-4024 or through the ERO information email address at ERO.INFO@ice.dhs.gov, also available at www.ice.gov/webform/ero-contact-form.
- You may contact the CBP Information Center to file a complaint or compliment via phone at (877) 227-5511, or submit an email through the website at help.cbp.gov/.