Biden Truncates Trump Immigration Enforcement Priorities

February 25, 2021

On his first day in office, President Biden issued an Executive Order rescinding President Trump’s Immigration enforcement priorities.  Those priorities were set forth in Executive Order 13768, signed by President Trump on January 25, 2017 and expressly revoked through President Biden’s new Executive Order.

President Biden argued that the move best serves the national interest.  “The task of enforcing the immigration laws is complex,” the Order states, “and requires setting priorities to best serve the national interest.”  The policy of his Administration, he continued, shall be “to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.”  “We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities.” 

Notably, Biden’s Executive Order immediately rescinded President Trump’s immigration enforcement priorities before the new Biden Administration had an opportunity to formally review any agency actions taken in compliance with those priorities and whether such actions should be maintained. 

President Trump’s immigration enforcement priorities, as set forth in Executive Order 13768, directed the agencies to prioritize immigration enforcement actions against aliens who were involved in a wide variety of illegal activity. 

The Trump Executive Order first prioritized the deportation of aliens subject to expedited removal.  In general, illegal aliens are subject to expedited removal when they have recently entered the U.S. [Note, however, that the Trump Administration later expanded the use of expedited removal to the full extent allowed by statute.  (See INA 235(b)(1); 8 CFR 235; 84 FR 35409)]  The advantage to prioritizing these aliens for removal is that it sends a clear message that, regardless of who may have previously entered and settled in the U.S., new waves of illegal immigration will be met with strict enforcement efforts.  It is worth noting, however, that aliens subject to expedited removal may still avail themselves of the asylum process (INA Section 235(b)(1)(B)). In addition, unaccompanied alien children, as defined in 6 U.S.C. 279(g)(2), may not be placed in expedited removal under current law. See 8 U.S.C. 1232(a)(5)(D).

Trump Executive Order also prioritized the deportation of aliens who were involved in a wide variety of criminal activity.  For example, aliens were a priority for deportation if they were inadmissible or deportable due to:

  • A conviction for or confession of criminal activity, pursuant to INA Section 212(a)(2) and 237(a)(2));
  • National security concerns, pursuant to INA 212(a)(3) or 237(a)(4); or
  • The use of fraudulent means to enter (or seek entry), pursuant to INA 212(a)(6). 

Finally, the Trump executive order directed immigration agencies to prioritize enforcement against illegal aliens who:

  • Were convicted of any criminal offense;
  • Were charged with any criminal offense, not resolved;
  • Committed acts that constitute a chargeable criminal offense;
  • Engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Abused any program related to receipt of public benefits;
  • Had not complied with a final order of removal issued by an immigration judge; and
  • Posed a risk to public safety or national security.

As Biden’s Executive Order revoked these priorities for immigration enforcement, the Department of Homeland Security, under new leadership, issued a truncated list of immigration enforcement priorities through a memorandum addressed to Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). This list of priorities applies not only to decisions regarding whether to deport an alien, but also “to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole.”

The new immigration enforcement policies under the Biden Administration are the following:

  1. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
  2. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
  3. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.

While the first two priorities mirror President Trump’s policy of prioritizing the removal of aliens who either raise national security concerns or are recent arrivals, the last priority, relating to criminal activity, covers only a fraction what triggered prioritized removal under the Trump Administration.  For example, the Biden priorities ignore criminal aliens who been convicted of felonies not constituting aggravated felonies.  They also ignore criminal aliens with repeat misdemeanor convictions or convictions of misdemeanors that are violent in nature.  They ignore criminal aliens who have been convicted of the most heinous crimes, but have been released and are circulating in society.  And prospectively, aliens are only a priority for removal if they have been convicted of an aggravated felony (as opposed to pleading down to a lesser charge), incarcerated, and are determined—presumably by DHS—to still pose a threat to public safety. 

There are no other priorities for removal under Biden’s Department of Homeland Security.  This means that the scope of criminal activity that will trigger prioritized removal of illegal aliens under the Biden Administration is even narrower than under the Obama Administration.   Under the Obama Administration, in addition to national security threats and recent arrivals, the Department of Homeland Security prioritized the removal of illegal aliens who had been convicted of: (1) gang-related offenses, (2) felonies (as opposed to “aggravated felonies”), (3) three or more misdemeanors (non-traffic related), and (4) significant misdemeanors (such as domestic abuse, sexual abuse, and DUI).  It also allowed the immigration agencies to prioritize the removal of aliens who had significantly abused U.S. visa programs.  (DHS Memorandum, Nov. 20, 2014)

Similar to the justifications provided for Obama-era policies, the Department of Homeland Security appeared to concede that it cannot execute its mission of enforcing U.S. immigration law.  Indeed, the announcement of new enforcement priorities appears to copy language from the Obama-era 2014 memorandum. (See DHS Memorandum, Nov. 20, 2014, Page 2) “Due to limited resources,” it states, “DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States. Rather, DHS must implement civil immigration enforcement based on sensible priorities and changing circumstances.”  (Biden Executive Order, Jan. 20, 2021)

As if to accentuate that point, DHS then directed its agencies to stop virtually all deportations for 100 days unless the apprehended alien poses a national security threat or was apprehended after November 1, 2020.  Within days, however, the State of Texas sued the federal government and a federal judge for the Southern District of Texas temporarily enjoined the directive, agreeing that the order to halt deportations for 100 days likely violated several federal statutes, including Section 706 of the Administrative Procedure Act and 8 U.S.C 1231, which requires the government to remove aliens within 90 days of receiving a final order of removal. (Federal District Court Order, Jan. 26, 2021) Two week later, Judge Tipton issued an extension on his temporary injunction, and then late February issued a nation-wide preliminary injunction indefinitely barring its implementation.  (Federal District Court Order, Feb. 8, 2021, Politico, Feb. 24, 2021)  

Despite the injunction, immigration enforcement experts are concerned that DHS’s directive to halt deportations for 100 days will still have significant consequences. That is because DHS’s new enforcement priorities expressly apply to a variety of important deportation-related decisions, such as whether to issue Notices to Appear, the document that begins the deportation process, and detainers, which direct jails or prisons to hold aliens upon release so that ICE may assume custody of the alien.

President Biden’s new enforcement priorities became effective February 1, 2021 and remain in effect until superseded by revised priorities developed in connection with the Department’s comprehensive review of immigration enforcement priorities and practices.