Biden Administration Interim Enforcement Priorities

Update (2/22/2021): ICE has published new interim enforcement priorities to use while the DHS prepares permanent priorities [see article].

On January 20, 2021, the acting Secretary of Homeland Security, David Pekouske, published a memorandum titled “Review of and Interim Revision to Civil Immigration and Removal Policies and Priorities,” [link] which details new civil enforcement priorities and a 100-day pause on most removals. In this article, we will review the new civil enforcement guidelines. In our companion article, we will review the 100-day pause on removals from the United States [see article].

New Civil Enforcement Guidelines

Acting Secretary Pekouske rescinded former Secretary John Kelly's February 20, 2017 memorandum [see article] outlining new civil enforcement policies for immigration [see article] (see also former President Trump's directive [see article]). He directed the agency to conduct a review to craft new civil enforcement priorities. In the interim, the Acting Secretary outlined the new civil enforcement priorities:

1. National Security. Individuals who have engaged in or who 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. Border Security. 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. Public Safety. Individuals incarcerated within federal, state, and local prisons and jails who are released on or after the issuance of this memorandum and 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.

These new enforcement priorities will take effect on February 1, 2021, and remain in place until the DHS promulgates new final enforcement priorities.

Applying the New Removal Priories

The Acting Secretary of Homeland Security listed circumstances in which the Department will now use the new interim civil enforcement priorities when deciding:

Whether to issue, serve, file, or cancel a Notice to Appear;
Whom to stop, question, and arrest;
Whom to detain or release;
Whether to settle, dismiss, appeal, or join a motion on a case;
Whether to grant deferred action or parole.

As an addendum, the Acting Secretary said 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.”

The Acting Secretary noted that, notwithstanding the priorities, the DHS is not prohibited from apprehending and detaining people present in the United States. Furthermore, the Acting Secretary took the position that the interim enforcement priorities to “may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”

The Acting Secretary directed the Acting Director of U.S. Immigration and Customs Enforcement (ICE) to promulgate guidance for the agency in implementing the new civil enforcement priorities.

Reviewing the Priorities

The interim enforcement priorities are substantially narrower than the enforcement priorities in place since February 2017. In general, the Acting Secretary de-prioritized immigration enforcement against individuals who were not present in the United States roughly before the 2020 elections, putting the cutoff date at November 1, 2020. Under the language of the memorandum, individuals who are not deemed to be national security risks and who do not have aggravated felony convictions will not be enforcement priorities, provided that they were present in the United States before November 1, 2020. Individuals who were apprehended at the border or ports of entry while attempting to enter the United States in violation of the law on or after November 1, 2020, will be prioritized for removal. The language of point two suggests also that individuals who are removable and who were not present in the United States before November 1, 2020, may also be prioritized for removal.

It is important, however, to not assume that the new enforcement priorities provide affirmative protection in any given case. Notwithstanding the priorities, DHS may still arrest, detain, and charge as removable any alien who is amenable to such charges under the INA. Furthermore, the Acting Secretary has taken the position that the enforcement priorities themselves do not give rise to a cause of action. That is, the priorities do not require the DHS to not detain or charge an alien who does not fall under the priorities, and the priorities themselves are not a defense against removal or any other enforcement action.

It is also worth noting that the memorandum may be subject to litigation going forward — the Texas Attorney General has threatened to file suit [link] against the Department of Homeland Security if it does not rescind the memorandum, arguing that Texas would be disproportionately harmed by the new enforcement priorities and the moratorium on certain removals, and that the DHS is violating prior settlement agreements it entered into with Texas. We will update the site with more information if and when it becomes available.

Although it appears clear that the Biden Administration will be more favorable to potentially removable noncitizens in many respects than was the Trump Administration, noncitizens should not take anything for granted regarding their immigration positions. A noncitizen who may be removable, who is facing criminal charges or has a conviction, or who is seeking a benefit or relief from removal should consult with an experienced immigration attorney for case-specific guidance.