Is Mayorkas Serious About Limiting Immigration Enforcement Near "Protected Areas"? Probably not.

DHS Secretary Mayorkas issued a new policy memo that limits immigration enforcement activities near what the agency calls “protected areas.”

In releasing the new memo, Mayorkas said:

“We can accomplish our law enforcement mission without denying individuals access to needed medical care, children access to their schools, the displaced access to food and shelter, people of faith access to their places of worship, and more.”

The memo replaces what was previously known as the “Morton Memo” from 2011, which also limited enforcement activities at what has been known as “sensitive locations” for the past decade.

To many people’s surprise (including my own), the Trump administration did not rescind the Morton Memo. (Side note: if you have a theory as to why, please share your thoughts below.)

Because sensitive locations included churches and other religious institutions, the Morton Memo was used in part to justify the expansion of the sanctuary church movement between 2017 and 2021. (Click here to learn more about the sanctuary church case of Edith Espinal, a woman in Columbus, Ohio, who successfully outlasted the Trump administration.)

The new memo replaces the term “sensitive locations” with “protected areas” and, in many ways, it expands and changes how the Department of Homeland Security appears to be thinking about the geography of immigration enforcement.

The term “protected areas” is not defined in the memo, but instead, Mayorkas gives this vague and highly discretionary description.

“Whether an area is a “protected area” requires us to understand the 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 an enforcement action would have on people’s willingness to be in the protected area and receive or engage in the essential services or activities that occur there. It is a determination that requires the exercise of judgment.”

On a positive note, this description does suggest that Mayorkas wants immigration enforcement officers to think contextually about the broader social impacts of immigration enforcement activities. I suppose if one wanted to be generous, this could be interpreted as a good thing. And it certainly appears to reaffirm and even expand the protections provided under the Morton Memo for immigrants seeking sanctuary.

But let me raise three concerns about this memo.

First, if Mayorkas is serious about this principle of “protected areas,” I cannot think of a single immigration enforcement activity that would not fall under this memo. Immigration enforcement is always inherently social and geographic in a way that always impacts the surrounding community and the families of people involved. As others have noted online, every deportation is an act of family separation—and this is more or less true as an empirical matter. Conservatives have already blasted the memo’s expansiveness and they are not wrong about the fact that this could be expansive, though I think their concerns are sensationalistically overblown. The real moral question that the memo raises, then, is the degree to which this memo is, in effect, duplicitous, or not actually serious about its own claims.

Second, the memo depends on, as it says, “the exercise of individual judgment” which means that Mayorkas is putting a tremendous amount of faith in ICE officers doing the right thing under this guidance. I see no reason or evidence to trust ICE officers to do this. In fact, this is somewhat redundant, since all enforcement activity—every raid, every arrest, every denial of stays of removal—requires the application of “individual judgment”. It seems to me that if the agency was serious about limiting immigration enforcement activities, it would reverse the accountability rubric. Mayorkas could simply order ICE officers not to conduct immigration enforcement activities at certain places until and unless they get official approval.

Third, the memo only applies to federal ICE officers but does not (and probably cannot) apply to state and local law enforcement officers who are now the real front-line enforcers, as a result of 287(g), Secure Communities, and related devolutionary enforcement policies. As a result, even if ICE officers followed this to the letter, it’s not at all the case that immigration enforcement would grind to a halt in the United States. ICE officers could still just rely on cops to arrest and detain people on local charges, then transfer those individuals into ICE custody.

I don’t imagine that we’ll see any dramatic shift in immigration enforcement practices as a result of this memo. But that’s an empirical question and I remain curious to see what the evidence says.