Biden administration’s immigration enforcement priorities

Almost immediately after taking office, President Biden issued a series of directives on immigration matters. Some of these directives focused on altering the immigration enforcement priorities of the Department of Homeland Security (DHS), the agency primarily charged with the enforcement of federal immigration laws. Federal statute confers immigration authorities with “broad discretion” to determine when it is appropriate to pursue the removal of a non-U.S. national (“alien” under federal law) who lacks a legal basis to remain in the country. Resource or humanitarian concerns have typically led authorities to prioritize enforcement actions against subsets of the removable population (e.g., those who have committed certain crimes or pose national security risks). The Trump Administration made enforcement a touchstone of its immigration policy, and generally sought to enforce federal immigration laws against a broader range of aliens who had committed immigration violations than the Obama Administration.

President Biden rescinded some of the Trump Administration’s immigration initiatives and directed DHS to review its immigration enforcement policies and priorities. In September 2021, DHS announced new immigration enforcement guidelines that generally focused its enforcement activities on aliens who pose a threat to national security, border security, or public safety. As discussed below, courts have considered legal challenges to the Biden Administration’s immigration enforcement policies. Following a lawsuit brought by Texas and Louisiana, a Texas federal district court vacated the guidelines in June 2022, and the U.S. Court of Appeals for the Fifth Circuit declined to stay that ruling pending consideration of the government’s appeal. The Supreme Court granted the government’s request to review the case and is scheduled to hear arguments in the matter on November 29, 2022.

In a separate lawsuit brought by Arizona, Montana, and Ohio, an Ohio federal district court in March 2022 preliminarily enjoined DHS from implementing and enforcing certain aspects of its enforcement guidelines. The Sixth Circuit, however, reversed the district court’s decision, lifting the injunction. Despite the Sixth Circuit’s ruling, DHS remains barred from implementing its enforcement guidelines given the Texas district court’s June 2022 ruling, which remains in force pending the Supreme Court’s review of that case.

This article addresses the Biden Administration’s immigration enforcement priorities, as reflected in DHS’s new immigration enforcement guidelines, and the legal considerations that they raise. Legal developments surrounding the Deferred Action for Childhood Arrivals (DACA), a separate immigration- related initiative that has also been the subject of recent litigation, are addressed in other CRS products.

Over the past decade, DHS has adopted different approaches for prioritizing immigration enforcement actions against different classes of removable aliens. In 2011, DHS announced that it generally prioritized the removal of aliens who threatened national security (e.g., terrorists), most aliens who had committed crimes, recent unlawful entrants, aliens with outstanding removal orders, and aliens who fraudulently obtained immigration benefits. In 2014, the agency established a new policy that was largely similar, but limited the types of criminal offenses considered highest priorities (e.g., terrorist activity, participation in a criminal street gang, felony offenses).

While the new policy continued to prioritize the removal of aliens with outstanding removal orders, this prioritization was limited to those with more recent final removal orders. The 2014 policy did not preclude immigration officers from pursuing the removal of aliens who were not “priorities,” but required supervisory approval for such action. DHS also changed its policy on the issuance of detainers used to obtain custody of aliens believed to be removable who were held by state or local law enforcement. DHS replaced the earlier Secure Communities program, which had been used to secure the custody of aliens suspected of being removable who were held by federal, state, or local law enforcement authorities, with the Priority Enforcement Program (PEP), which authorized issuance of detainers to obtain custody of such aliens only when they had been convicted of certain enumerated crimes or posed a danger to public safety.

Along with taking steps to identify and apprehend aliens for removal, immigration authorities have sometimes granted temporary reprieves from enforcement action, either using authority conferred directly by statute, or granting reprieves as an exercise in general enforcement discretion. Perhaps the most large- scale reprieve premised on enforcement discretion is DACA, established in 2012 by the Obama Administration, which allows certain unlawfully present aliens who arrived in the United States as children to obtain deferred action (i.e., an assurance that they will not face removal) and work authorization, among other benefits, in renewable two-year periods. Then-DHS Secretary Janet Napolitano explained that the agency’s enforcement resources should not be expended on “productive,” low-priority individuals who lacked the intent to violate the law and have contributed to the United States.

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