Biden Immigration Enforcement Priorities Emphasize a Multi-Dimensional View of Migrants
Biden administration guidelines for U.S. immigration enforcement represent a shift from the blanket approach of the prior Trump administration and embrace a paradigm that views unauthorized immigrants and other removable noncitizens as individuals who can contribute to the United States, rather than as people defined for all time by past actions. The new guidance, unveiled by Homeland Security Secretary Alejandro Mayorkas in late September, replaces Trump administration guidelines that effectively made all 11 million unauthorized immigrants targets for arrest and deportation, no matter their equities in the United States.
The prosecutorial discretion guidance provided to U.S. Immigration and Customs Enforcement (ICE) builds on efforts by the Obama administration to narrow civil immigration enforcement. It differs in one key respect, however: Requiring ICE officers to consider the totality of circumstances for the noncitizens they encounter—not just their immigration status and, in most cases, their criminal history. While previous guidance allowed for discretion only in cases falling into grey areas, the new process includes consideration of a broader set of factors from the start. In this way, the Biden guidelines require thorough assessment of each case, instead of taking an approach that prioritizes entire categories of individuals for enforcement and excludes others.
For the last quarter-century, the debate over immigration enforcement has generally been between proponents of deporting any unauthorized or otherwise removable migrant, and those who would limit enforcement to certain groups depending on their perceived threat to national security, criminal history, and recency of arrival. Instead, the new guidelines, which replace interim instructions issued in February, encompass multiple dimensions, including noncitizens’ contributions to society through work, community efforts, or other activities. For criminal offenders, the guidelines allow ICE officers to consider the circumstances surrounding their offense, such as the degree of harm it caused, length of the sentence imposed (if any), and whether the crime was expunged from the individual’s record.
While a sharp contrast to the Trump administration’s aggressive enforcement stance, the new prosecutorial discretion guidelines may not dramatically reduce the number of ICE arrests and deportations. One reason for this is that the Trump administration’s efforts were significantly curbed by state and local jurisdictions that limited their cooperation with ICE due to concerns that people were indiscriminately funneled into the immigration enforcement machinery. Another is because so much will depend on how individual ICE officials exercise their discretion. As a result, it is impossible to estimate what share of the unauthorized population will be deemed priorities for enforcement. ICE arrests in fiscal year (FY) 2021 appear to have dropped from previous years, suggesting that numbers were trending downwards even before the new guidance was issued.
Historical Seesaw of Enforcement Priorities
ICE faces competing goals and constraints. Its officers have the authority to arrest, detain, and deport all unauthorized immigrants and lawfully present noncitizens who have been convicted of certain crimes, including minor ones such as traffic offenses. But the agency has finite capacity to go after these targets.
Given this dilemma, presidential administrations since 1976 have recognized the need to establish priorities for immigration enforcement. This task became more politically fraught when enforcement became the dominant theme of congressional interest in immigration policy beginning in the 1990s. In 1996, Congress authorized state and local law enforcement officers to assist in immigration enforcement. In the 1990s and with the USA PATRIOT Act of 2001, Congress mandated detention for all national security threats, individuals convicted of certain crimes, and other noncitizens perceived to pose a risk to the country.
With the creation of the Department of Homeland Security (DHS) following the September 11, 2001 terrorist attacks, immigration policy began to be seen principally through the lens of national security. Through rapid growth in its officer corps and resources, ICE expanded its enforcement activities considerably in scope throughout the Bush administration. These activities included large-scale worksite raids, community operations resulting in arrests in people’s homes and on the streets, and a growing dependence on cooperation with state and local law enforcement through 287(g) agreements—so named for a section of U.S. immigration law—to bring people into ICE custody. The result was a rapid rise in ICE arrests, detentions, and removals alongside growing criticism of seemingly indiscriminate enforcement that netted many long-time U.S. residents, workers, and parents of U.S. citizens. Occasionally these operations rounded up business owners or faith leaders considered pillars of their community.
The Bush administration ramped up ICE enforcement in part as an explicit strategy to encourage lawmakers to enact comprehensive immigration reform that included a pathway to legal status for millions of unauthorized immigrants. However, attempts at reform failed, while increasingly aggressive enforcement continued unabated into the early years of the Obama administration. Although DHS ended worksite raids under Obama, it continued enforcement operations in the community and expanded deportations from state prisons and local jails principally through the Secure Communities program. Begun at the end of the Bush administration, Secure Communities allowed state and local law enforcement to check the immigration status of people entering or exiting custody against DHS databases. Arrests and deportations of removable noncitizens from the U.S. interior reached their peak in the 2009-11 period, as Secure Communities was deployed nationally.
As deportations soared and prospects for legalization faded, immigrant-rights advocates and a number of state and local governments pushed back against ICE’s approach. Reports documented parental deportations that plunged U.S.-citizen children into poverty, racial profiling by police officers pursuing immigrants, and widespread fear among the foreign born that isolated them and impeded their interactions with law enforcement and other public institutions, among other harms. A number of states and major cities enacted so-called sanctuary measures to curtail cooperation with ICE.
In response to the groundswell of criticism, which included labeling President Barack Obama “the deporter in chief,” the administration issued a series of guidelines progressively narrowing enforcement priorities, culminating in a November 2014 policy that instructed ICE to focus on three groups: national security threats; public safety threats, including individuals convicted of felonies and multiple or serious misdemeanors; and those who entered illegally after January 1, 2014. Anyone not in these groups was to be excluded from enforcement. The guidelines also emphasized that ICE should use prosecutorial discretion for individuals in grey areas—such as those convicted of less serious crimes—by weighing other factors including their length of U.S. residence, economic contributions, status in their community, and being the parent of a U.S.-citizen minor.
Analysis by the Migration Policy Institute (MPI) suggested that these priorities exempted about 87 percent of the unauthorized immigrant population from civil enforcement. Between FY 2011 and FY 2015, progressively narrower priorities reduced the number of ICE interior arrests by two-thirds, from around 322,000 to 118,000 annually (see Figure 1). Removals based on interior arrests fell by a similar amount.
Figure 1. ICE Administrative Arrests, FY 2009-21
Sources: Bryan Baker, Immigration Enforcement Actions: 2016 (Washington, DC: Department of Homeland Security, Office of Immigration Statistics, 2017), available online; Nick Miroff and Maria Sacchetti, “Immigration Arrests Fell to Lowest Level in More than a Decade during Fiscal 2021, ICE Data Shows,” Washington Post, October 26, 2021, available online; U.S. Immigration and Customs Enforcement (ICE), Fiscal Year 2018 ICE Enforcement and Removal Operations Report (Washington, DC: ICE, 2018) available online; ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report (Washington, DC: ICE, 2019), available online; ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and Removal Operations Report (Washington, DC: ICE, 2020), available online.
The pendulum swung back under President Donald Trump, who promised during his 2016 campaign to immediately deport 2 million to 3 million immigrants after taking office. On his first day in the White House, Trump issued an executive order rescinding the Obama administration’s policies on enforcement priorities and prosecutorial discretion. Political leadership at ICE and DHS made clear that all unauthorized immigrants and other removable noncitizens were potential targets, and the Justice Department threatened to withhold federal funding from state and local law enforcement agencies that did not cooperate. Most sanctuary jurisdictions—including California, New York City, and Chicago— refused to back down, but ICE administrative arrests increased to nearly 159,000 in FY 2018, driven mostly by a rise in arrests in Texas and the Southeast. Still, ICE arrests and removals never came close to their peak in FY 2011, because of resistance by sanctuary jurisdictions. Arrests and deportations further declined substantially in FY 2020 amid the COVID-19 pandemic.
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Like Trump, President Joe Biden campaigned on reversing his predecessor’s immigration policies. Immediately after taking office, he rescinded the Trump orders and set interim ICE priorities that mimicked Obama’s by focusing on national security and public safety threats, as well as recent arrivals. The Biden administration’s interim priorities for public safety were narrower than Obama’s, focusing on a subset of crimes termed aggravated felonies. But the guidelines were still categorical in nature in that they excluded from enforcement individuals outside these three groups and endorsed the detention and deportation of those in the priority groups. Along with impacts of the pandemic, the interim priorities reduced the number of ICE arrests to approximately 72,000 in FY 2021, less than one-half the number of arrests in FY 2018 and less than one-quarter their peak under Obama, in FY 2011.
Texas and Louisiana challenged the interim priorities in court, arguing they contradicted congressional mandates to detain broader classes of noncitizens, and the guidelines were temporarily halted by a federal court in August, although the Fifth U.S. Circuit Court of Appeals later overruled a significant part of the decision. Discretion to detain and prosecute, the appeals court said, remains the purview of the executive branch.
New Guidelines Emphasize a Multi-Dimensional View of Migrants
The civil enforcement guidelines announced in September, which go into effect on November 29, build on the Obama and interim Biden priorities but leverage a new conceptualization of prosecutorial discretion. Those earlier priorities continued the categorical approach, whereby immigration status, criminal history, and time spent in the United States were the primary factors for making enforcement decisions. However, the noncitizen’s U.S. criminal history was often the sole driver of action. ICE officers were instructed to scan databases to establish this history and record individuals’ level of criminality before making arrests, launching community operations, and requesting to take inmates into custody from local jails. As result, these regimes reinforced the narrative that removable noncitizens were de facto public safety threats.
While maintaining the same three general priority categories, the new enforcement guidelines mark a pronounced shift by requiring individualized assessments of the “totality of the facts and circumstances” surrounding an individual’s place in society, contributions, vulnerabilities, and criminal history, at least when assessing potential public safety threats and recent arrivals (no such wording is used for national security threats, although the guidelines underscore the importance of prosecutorial discretion generally speaking). Indeed, the guidelines begin by emphasizing noncitizens’ contributions to society through efforts such as their work, business ownership, and community leadership.
The guidelines stress that the type of crime committed should not be the only consideration in determining if someone is a public safety threat. Aggravating factors surrounding the crime may lean in favor of enforcement action, and may include the gravity of the offense, harm to the community, the sentence imposed, and the offender’s overall criminal record. On the other hand, factors that might mitigate against enforcement include the individual’s age when the crime was committed, how much time has passed since the offense took place, whether it was expunged, and whether the noncitizen is a U.S. military veteran, a caregiver, a victim or witness of another crime, eligible for a humanitarian visa, or has demonstrated post-conviction rehabilitation.
ICE in the past has targeted unauthorized immigrants convicted of crimes committed in their youth—particularly common offenses such as drunk driving or drug possession—and then arrested them years later, at a time when they may have formed families, bought homes, and otherwise successfully integrated into the fabric of U.S. society. Members of the clergy, military veterans, and refugees with old criminal convictions have at times been deported. In theory, the new guidelines would address such cases by instructing ICE officers to consider the other side of each person’s ledger.
The larger degree of prosecutorial discretion has attracted pushback from both sides of the traditional debate. Advocates of aggressive enforcement have criticized the new guidelines for being too soft on unauthorized immigrants and other removable noncitizens, claiming they allow authorities to turn a blind eye to criminal activity. On the other side, some immigrant advocates have worried that granting more discretion to ICE officers could allow them to take an aggressive approach that would contradict the administration’s promises to create a more humane system.
Significantly, the Biden priorities also speak to protections for civil liberties and civil rights. In the past ICE has been criticized for arresting activists and reporters who were unauthorized immigrants, victims and witnesses of unrelated crimes while they were at courthouses, and individuals during worksite raids allegedly orchestrated by employers to retaliate for worker complaints or labor organizing efforts, among others. The new guidelines explicitly prohibit enforcement activities that could cause such violations.
Worksite operation guidelines proposed in October build on this framework by protecting workers who bring complaints against abusive employers and encouraging them to come forward with potential grants of deferred action, parole, or other forms of long-term protection from deportation.
Prospects for Cultural Change at ICE?
The guidelines have the potential to change an ICE culture that has historically supported the notion that unauthorized and other removable noncitizens are primarily lawbreakers, public safety threats, and deserving of removal. Indeed, the union for ICE officers and staff made its first-ever presidential endorsement for Trump in 2016. And on the eve of Trump’s departure from the White House last January, the union struck a deal granting it effective veto power over the Biden administration’s new enforcement policies (the deal has since been struck down by court order).
By requiring individualized determinations, the new guidelines allow for substantially more officer discretion. But they also require officers to do more rigorous assessment of each case. ICE officers in the past have criticized narrower guidelines for limiting their ability to do their jobs consistent with their obligations to enforce the law. Delegating prosecutorial discretion about individual cases to officers and their immediate supervisors may assuage some of these criticisms and could potentially achieve buy-in from officers who had objected to categorical exclusions under the Obama and Biden interim guidelines. Allowing for individual assessments instead of categorical exclusions may also help immunize the new policy from court challenges, given those challenges have generally rested on exclusions seen to contradict congressional mandates.
The new guidelines appear likely to slow the ICE machinery. Given the instruction that ICE officers investigate the circumstances surrounding crimes and consider the noncitizen’s criminal history in totality, it is likely these actions would have to occur before individuals can be taken into custody. This would require more justification before initiating transfers from local jails as well as more intensive planning for community operations. This requirement would also likely lengthen the amount of time it takes ICE to pursue arrests. Thus, the priorities are likely to slow the ICE bureaucracy and result in a smaller number of arrests and deportations over time, whether they actually target a smaller number of people on paper or not.
Implementation Opportunities and Challenges
The DHS memorandum containing the guidelines includes requirements for additional ICE officer training and oversight. Substantial training may be required to shift the ICE paradigm and culture. A new case review process, first established under the interim Biden priorities, allows for supervisors to weigh in on complex cases and set precedents in perhaps much the same way that the Executive Office of Immigration Review (EOIR) does for immigration judges’ determinations in removal cases. At a broader level, an implementation review process will also examine the exercising of prosecutorial discretion across the agency for quality and consistency.
A key question will be whether the discretion afforded to individual ICE officers and their supervisors leads to different patterns of enforcement across field offices. Historically, ICE field offices have set the scope and pace of activity very differently, often reflecting regional or local conditions. Field offices in California and Illinois, for instance, have had to contend with sanctuary laws and ordinances that limit law enforcement agencies’ cooperation; offices in Arizona, Florida, and Texas, meanwhile, tend to operate amid laws encouraging such cooperation. During the Obama administration, DHS engaged in lengthy negotiations with jurisdictions to modify the scope of ICE enforcement to accommodate state and local policies; it remains to be seen whether DHS will restart these negotiations and how the new enforcement guidelines affect relationships with state and local governments. The evaluation process outlined in the memo has the potential to reveal the degree of consistency of decision-making across jurisdictions.
Finally, it remains to be seen how the new guidance affects overall arrests and removals, and whether the profile of those facing immigration enforcement changes. The scope of enforcement could expand, for example if ICE officers find ample aggravating circumstances for individuals convicted of crimes that would not have fit within the defined categories of previous priorities.
Proper training, supervision, case review, and evaluation will be necessary to monitor and ensure officers adhere to the spirit as well as the letter of the new guidelines. Releasing public data on enforcement and a range of factors including criminal convictions and aggravating and mitigating factors affecting prosecutorial decisions will be essential to build a broad base of trust. As an agency that has faced persistent calls for its abolition, ICE may continue to generate widespread skepticism and fear from immigrant communities and remain mired in political controversy if trust remains a missing ingredient.
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