The Law Enforcement Immigration Task Force recently published a resource comparing the enforcement priorities of the past two administrations with the interim priorities of the Biden administration. To read the full paper, click here.

Enforcement priorities describe how federal immigration enforcement agencies use their resources to arrest and/or remove non-citizens. Through the Obama, Trump, and currently, Biden administrations there have been different frameworks to approach address and enforce illegal immigration:

(a) The Obama administration created a framework that focused on three categories of undocumented immigrants for arrest and deportation: (1) individuals who may be threats to national security, (2) threats to public safety, or (3) recent illegal entrants. Federal resources for immigration enforcement were known to be extremely limited, leading the Obama administration to emphasize those who were deemed most dangerous. Upon releasing these priorities, the Department of Homeland Security (DHS) issued new enforcement guidelines that were to be applied agency-wide. The Obama administration prioritized those who were suspected to be engaged in terrorism, espionage, or criminal gang activity, and those who were convicted of a felony. Those convicted of three misdemeanors were pushed to priority two. In these priorities, prosecutorial discretion was to be regularly exercised. Some factors considered included an individual’s ties to the community; whether the individual or their spouse was pregnant or nursing; whether the individual was a veteran or active member of the U.S. armed forces; and if they were a minor or elderly individual, etc. Assessment of these factors allowed enforcement agents to determine the appropriate degree of enforcement towards the given individual.

(b) The Trump administration completely abandoned the previous framework. All undocumented immigrants became priorities for arrest and removal. This was done through a 2017 executive order entitled “Enhancing Public Safety in the Interior of the United States.” Seven broad enforcement categories were set, all with equal weight in priority. New categories were established for those who had engaged in visa fraud or identification misrepresentation. The Trump priorities also gave more discretion to immigration officers to arrest those who appeared to be a risk to public safety. Those who had been charged with any crime, including minor traffic violations, were now eligible for deportation. Throughout Trump’s tenure, arrests and deportations for minor offenses increased while arrests and deportations of serious offenders decreased. The Trump administration was criticized for wasting limited resources.

(c) During the campaign, the Biden administration promised to restore sensible immigration enforcement priorities. Right away, President Biden ordered a 100-day pause on deportations, which was later halted by a federal judge in Texas. He also swiftly revoked Trump’s executive order on interior immigration enforcement. DHS was directed to conduct a review of policies and practices regarding immigration enforcement and develop recommendations for immigration enforcement, which are forthcoming. Like the Obama administration, the Biden administration has prioritized the use of limited resources by accepting that the removal of all undocumented immigrants in the U.S. is not possible. The interim enforcement priorities are focused on those who pose a threat to national security, border security and public safety. These guidelines first prioritize those who are suspected of engaging in terrorism or espionage. Then recent unlawful entrants, followed by public safety threats, including those who have been convicted of aggravated felonies. In the interim guidelines, ICE officers are given the authorization to apprehend presumed national security threats without prior approval, but preapproval from a Field Office Director is necessary to apprehend any other undocumented immigrants. These enforcement priorities are expected to result in a decline in deportations for minor offenses, and an increase in deportations for criminal convictions.

The Biden administration will soon release its final priorities on immigration enforcement, which should continue to prioritize threats to national security, border security and public safety. It is recommended that the administration clarify existing ambiguities in this framework to provide DHS officers and other enforcement agents in the field with stronger guidelines for decision-making. The administration is also encouraged to continue using prosecutorial discretion where there are strong mitigating factors. All eyes will be on the Biden administration as the final priorities are released in the coming weeks.