The Biden administration inherited an immigration enforcement system devoted to detaining and deporting as many people as possible. During the Trump years, every undocumented immigrant in the country became a target of deportation. Even longtime residents who had minor brushes with the criminal justice system were subject to enforcement actions.

A new report from the American Immigration Council details the steps taken so far by the Biden administration to roll back the enforcement excesses of the Trump era. Although the administration has made some initial progress in this direction, much work remains to be done.

Soon after taking office, Trump issued an executive order which eliminated President Obama’s enforcement priorities, declaring that all immigrants who could be targeted for deportation by U.S. Immigration and Customs Enforcement (ICE) should be targeted. On Inauguration Day, President Biden revoked that order.

But the Biden administration has been inconsistent in devising and implementing new enforcement priorities.

In January, the Department of Homeland Security (DHS) issued a memorandum containing temporary enforcement priorities. This narrowed the focus of enforcement to a small group of people inside the country, as well as those who had entered the country since November 1, 2020. The memo also called for a 100-day moratorium on most deportations.

However, the moratorium was blocked by a judge in Texas and the Biden administration chose not to challenge that decision. As a result, the moratorium never took effect.

In February, ICE issued a new set of interim enforcement priorities which targeted a wider range of noncitizens than the January DHS memo. But these priorities have been implemented inconsistently across different jurisdictions.

Moving forward, the Biden administration should instead issue prosecutorial discretion guidelines which do more than define who should be a target of immigration enforcement. The guidelines should detail which groups of noncitizens should be shielded from enforcement actions and when and how prosecutorial discretion should be granted.

Special attention should be paid to maintaining family unity, protecting vulnerable populations, and working to address racial disparities in immigration enforcement. Any new guidelines should also shield people with viable defenses to removal or the ability to obtain immigration status through other means.

The Trump administration did not only create an overly broad definition of who should be targeted for deportation. Trump also worked to make it easier to carry out deportations by expanding the use of “expedited removal”—the process by which an individual immigration enforcement official can order the immediate deportation of certain undocumented immigrants without going through immigration court.

Previously, expedited removal had only been used along the border. But Trump expanded its use nationwide.

In February, President Biden ordered DHS to review the use of expedited removal procedures, but this review has not yet been completed. At a minimum, the Biden administration should immediately rescind the Trump-era expansion of expedited removal across the entire country.

As a presidential candidate, Biden committed himself to reducing the number of noncitizens held in immigration detention. He proposed ending the contracts ICE has with private detention centers and relying more on community-based alternatives to detention.

However, the Biden administration has yet to move on this front. Biden issued an executive order in January which called for an end to Department of Justice contracts with private criminal detention facilities, but the order did not apply to immigration detention. Biden’s draft immigration reform bill contains a section on expanding alternatives to detention, but the bill has not yet received a vote.

Government data reveal that the number of noncitizens booked into immigration detention facilities by ICE from inside the United States has fallen by more than half since President Biden took office. Yet the number of noncitizens taken into custody along the southern border by U.S. Customs and Border Protection and transferred to ICE detention facilities has grown during this time.

As a result, the Biden administration has increased the population of people in immigration detention by nearly 40% compared to the numbers when Trump left office.

The Biden administration has taken some promising first steps in scaling back the inhumanity of the immigration enforcement system under Trump. However, the administration has a long way to go in creating a new kind of immigration enforcement system that is rooted in fairness and due process.


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