Let’s talk about deportation.
Trump’s Immigration Deportation
The dark days of Trump’s immigration deportation policies are gone, at least temporarily. Under Trump, we had the Enhancing Public Safety In the Interior of the United States policy, which allowed ICE agents to go on raids throughout the country, targeting migrant communities, installing a state of fear and terror.
Secondly, Trump’s Border Security and Immigration Enforcement Improvements executive order expanded detention and expedited removal, resulting in many asylum applicants being turned away at the border through expedited removal, and others being detained, resulting in many cases of children being separated from their parents. Finally, the executive order initiated the construction of the now infamous (and wasteful) southern border wall.
Third, two other executive orders, the Protecting the Nation from Foreign Terrorist Entry Into the United States and later, the Enhanced Vetting Capabilities and Processes for detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats resulted in what was called the “Muslim Ban,” causing an uproar by people stranded at airports at its initiation and later, charges of violations of due process and discrimination on the basis of religion by their advocates.
I wrote about those dark days in my previous blog posts. 1) The Effect of Trump’s Executive Order Protecting the Nation from Terrorists, also known as the “Muslim Ban;” 2) AILA Analyzes President Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States; 3) Secretary John Kelly Issues Two Memoranda Implementing Immigration Laws and Border Security; 4) The American Immigration Lawyers Association (AILA)’s Analysis of Secretary Kelly’s Memoranda Implementing the President’s Executive Orders; 5) Updates on the Travel Ban – District Courts in Washington and Hawaii, and the Ninth Circuit respond to Travel Ban: 2nd Travel Ban is Issued (Executive Order 13780); 6) The American Immigration Lawyers (AILA)’s comments on the President’s Proposal for a Border Wall; 7) Guidance on the Travel Ban; 8) US Supreme Court Defines Close Family Relationship and Rules on Hawaii’s Court Injunction; 9) Trump’s 3rd Travel Ban – Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats; 10) The Courts Respond to Trump’s Third Travel Ban. Thank God those dark days are gone, at least for now.
The Biden Deportation Policy
At the start of his presidency, Biden initiated a deportation freeze. Under the Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities the Biden administration initiated a 100 day pause on deportations to allow the Department of Homeland Security time to determine where it needed to allocate more of its limited resources.
The Biden guidelines emulate the enforcement priorities articulated in the 2011 Morton Memo under Obama. Under the Morton Memo deportation priorities focused on noncitizens who posed a threat to national security or public safety, or recent illegal entrants, and those with deportation orders who chose not to leave.
Like Obama, the Biden Interim Guidance did not apply the deportation freeze to those who were a threat to national security, border security and public safety. In fact, the acting director of ICE clarified that the deportation freeze did not prevent ICE officers from arresting, detaining and removing noncitizens in those categories.
The deportation freeze only directed ICE officers to exercise their discretion in determining whether the noncitizen fell into one of the categories subjecting him or her to deportation or removal, or whether they could be exempt from deportation or removal by the deportation freeze. Nevertheless, a Texas judge blocked the deportation freeze. Then a few months later, the Texas Attorney General dropped the lawsuit when the 100-day deportation freeze expired.
Why Should We Care About a President’s Deportation Policy?
We should care because these policies set the tone for what the Custom and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO) can and cannot do at the border and during a person’s stay in a deportation facility.
The Biden guidelines require ICE to take into account the totality of a person’s facts and circumstances when making decisions regarding deportation or removal, including but not limited to such factors as how long they have lived in the United States, the strength of their family ties here, the condition of their health.
The guidelines require ICE agents to use their discretion and focus the Department of Homeland Security’s resources in a more targeted way, with a focus on those who fall into one of the 3 categories of removability.
The guidelines require the protection of civil rights and liberties. A noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, or political association cannot be used in deciding whether to deport or remove an individual.
How Do Biden Enforcement Priorities Differ From Obama’s?
According to Migration Policy Institute, prosecutorial discretion guidance under Biden builds on that set by Obama but it differs in one key aspect. Like Obama’s policy, the Biden guidelines seek to narrow civil immigration enforcement. However, the Obama enforcement priorities were clear cut as to who should be deported or removed, and those who did not fall into the three deportation or removal categories fell into a gray area allowing for the exercise of prosecutorial discretion by ICE.
On the other hand, the Biden guidelines provide for a broad set of factors to determine who should benefit from prosecutorial discretion, including a noncitizen’s contributions to society through work, community efforts, and other activities. For those with a criminal record, ICE officers should consider the circumstances under which the incident occurred, the degree of harm it caused, and the length of the sentence imposed. Therefore, the Biden guidelines are broader than Obama’s when it comes to the exercise of prosecutorial discretion.
The problem with the new guidelines, however, is that they leave too much power in the hands of ICE. While the culture at ICE may be slowly changing, overall, ICE tends to view deportable or removable noncitizens in a negative light. The culture will not change overnight with a new policy directive.
The difference between Obama’s and Biden’s prosecutorial discretion policies can be seen in the factors now considered by the ICE Office of the Principal Legal Advisor (OPLA), also known as the government attorneys.
Under Obama, an immigration attorney could occasionally obtain dismissal of deportation or removal case if the noncitizen had an alternate means of relief, such as a pending family-based visa petition, temporary protection status (TPS), or cancellation of removal that was not yet current. More often, these cases were administratively closed, meaning they were not actually dismissed but were taken off the court’s active case docket.
However, currently under the Biden prosecutorial discretion policies, the government attorney is willing to agree to a dismissal of a case by considering such factors as how long the noncitizens has lived in the United States, the strength of the family ties, their involvement in their community, their manner of entry, the prior immigration history, work and education history, and other compelling humanitarian factors, such as age or health. If there is a criminal record, the government will consider the seriousness of the crime, the recency and circumstances of how it was committed, and any indicia of rehabilitation. This differs from the categorical approach of the Obama administration.
The Obama immigration prosecutorial discretion policy has been revitalized under the Biden administration, and in the immigration prosecutorial discretion policy of 2021, it has been expanded.
Overall, while Biden has not been able to implement the pathway to citizenship he promised millions of noncitizens during his campaign, he has made significant improvements in immigration policy for many at risk of deportation or removal. If Biden did not have such a narrow margin in Congress, he might be able to bring about greater immigration reforms.