Late yesterday, the Biden-Harris administration ended its first day in office signaling that campaign promises to restructure immigration policy were more than empty words. In a series of executive actions signed by President Biden and a memo issued by the temporary head of the Department of Homeland Security, the incoming administration announced a 100-day pause on removals and new enforcement priorities.
President Biden set the stage for the new administration’s meaningful immigration policy shift by rescinding his predecessor’s own prioritization scheme. Making good on a campaign promise, Biden’s “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities” revoked Trump’s sweeping January 2017 order allowing Immigration and Customs Enforcement agents to target just about anyone who is potentially removable from the United States.
Having cleared the stage of the Trump administration’s immigration priorities, DHS then announced a new set of priority targets. In a memo to the leaders of the federal government’s three primary immigration agencies—ICE, Customs and Border Protection, and U.S. Citizenship and Immigration Services—the Acting Secretary of Homeland Security David Pekoske announced that the new administration wants to spend its limited immigration policing resources on three groups: people who it describes as threats to national security, border security, and public safety. Pekoske’s memo offers additional details on each of these categories and explains that the new prioritization scheme goes into effect on February 1, 2021.
People who were not physically present in the United States before November 1, 2020 or who were apprehended “attempting to unlawfully enter” the country before that date fit the border security prioritization. The reference to unlawful entry makes me wonder whether this includes people who arrive at the border intending to request asylum. The Trump administration failed to account for the fact that federal law explicitly allows people to request asylum even if they lack authorization to enter the country.
The public safety category is remarkably complex. People are seemingly deemed a “public safety” priority target if they meet three criteria. First, they are currently incarcerated (as of January 20, 2021), but later released. Second, they have been convicted of an “aggravated felony,” a term that has a specific, convoluted definition under federal immigration law. Third, they “are determined to pose a threat to public safety.”
Immigration officials rarely invoke the last category listed as a priority, national security threats, but the Pekoske memo nonetheless notes that this includes people who are suspected of terrorism.
Importantly, DHS is not altering its ability to arrest or detain migrants who don’t fall into one of these priority areas. The prioritization scheme applies only to removal. As such, DHS might continue arresting and detaining migrants like before. The United States began the Biden presidency with the fewest people in ICE prisons in many years (14,715 as of January 15), largely because the Trump administration severely curtailed border crossings during the pandemic. Yesterday’s announcements do not touch on the Biden-Harris campaign’s promise of ending the federal government’s relationship with private prison companies.
Still, the prioritization memo does recognize the public health risk posed by confinement. It requires that all “enforcement and detention decisions shall be guided by DHS’s ability to conduct operations and maintain custody consistent with applicable COVID-19 protocols.” Taken seriously, this would require ICE and CBP to limit capacity in their prison networks rather substantially. This is meaningful because, under Trump, ICE’s detention practices put many at risk, leading several courts to order release of detained migrants. By the time Trump left the White House, over 2,600 migrants had been ordered released due to court orders, agency statistics show.
In addition, the Pekoske memo announces a 100-day “pause” on removing migrants from the United States beginning on January 22, 2021. This pause, the memo says, applies to “any noncitizen with a final order of removal” except people who were not physically present in the United States before November 1, 2020; have agreed to give up any legal claims to stay in the country; have engaged in terrorism, as found in writing by the ICE director; or have been found by the head of ICE, after consulting the Attorney General, that “removal is required.” Along with this, ICE is required to assess options currently provided by immigration law to move people into “alternative forms of detention” from ICE’s notorious prison system.
Under the new memo, ICE is also required to consider moving removal cases off the immigration court docket by staying proceedings, or granting limited relief such as deferred action. Under Obama, DHS administratively closed many cases involving people who had an option for relief pending. Pekoske’s memo lacks details on this front–those will probably come later through internal memos–but this broad instruction does suggest a more tailored approach than the Trump administration’s penchant for shoving all possible removal cases onto the immigration court’s overburdened docket of almost 1.3 million cases.
Overall, this is a significant shift from Trump administration policies. This is a big deal. The list of enforcement priorities is narrow and the 100-day pause is broad. Now we have to see how these policies resonate with ICE and Border Patrol officers. Will they follow along? The Obama administration learned that resistance from field officers could go a long way to slowing down policy priorities. At one point during the Obama administration, the union representing ICE agents even sued the federal government claiming that the administration’s priorities were in effect asking them to violate federal law. The agents eventually lost, but clearly this was a sign of a poor relationship between officials in Washington and officers stationed throughout the country. Will Biden manage this tenuous relationship any better?
Left unclear from yesterday’s action is what happens to some of the policy initiatives that the Trump administration embraced in the interior-enforcement executive order that Biden rescinded. Within weeks of Trump’s 2017 order, John Kelly, who was Secretary of Homeland Security at the time, issued a memo announcing that the department would prioritize use of 287(g) agreements linking ICE to local law enforcement agencies. When Kelly issued that memo on February 20, 2017, there were 32 law enforcement agencies in 16 states participating in 287(g) agreements. Currently there are 72 agencies in 21 states participating in one type of 287(g) agreement and 76 agencies in 11 states participating in a second type of 287(g) agreement. Can we expect to see DHS now reduce the number of 287(g) agreements in place? There’s nothing in these agreements or federal immigration law stopping DHS if it so chooses, as I wrote last week.
Kelly’s 2017 memo also announced plans to restore the Secure Communities Program. After expanding Secure Communities from an initiative with limited reach to one that stretched across the country, the Obama administration bent to widespread criticism and ended Secure Communities in November 2014. But Kelly’s memo is among six Trump era directives that Pekoske’s memo explicitly rescinded. Does withdrawing Kelly’s memo mean that the Biden-Harris administration plans to end Secure Communities, perhaps replacing it with a new version of the Priority Enforcement Program?
Clearly there are a lot of details to work out. Much will depend on how ICE and CBP implement these announced policies. And just as much will depend on how ICE and Border Patrol agents respond.