Legal Sidebari

The Biden Administration’s Immigration
Enforcement Priorities: Background and
Legal Considerations
March 9, 2021
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. citizen or national (alien) 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. The
Trump Administration also sought to rescind the Deferred Action for Childhood Arrivals (DACA)
program, which allows certain unlawfully present aliens who came to the United States as children to
remain and work in this country for a certain period of time.
President Biden has rescinded some of the Trump Administration’s immigration measures, and also has
directed DHS to reexamine its immigration enforcement policies and priorities. DHS has sought, during
the pendency of that review, to temporarily restrict immigration enforcement actions to cover only certain
aliens, and to suspend the execution of most removal orders for a period of 100 days. However, a federal
district court has enjoined the agency’s “100-day pause” on deportations while it considers a legal
challenge to this action. President Biden has also announced an intent “to preserve and fortify” DACA,
though that policy also is subject to legal challenge. This Sidebar addresses the Biden Administration’s
immigration enforcement priorities and legal considerations that they raise.
Prior Immigration Enforcement Policies
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
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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 that were 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 regarding the issuance of detainers used to obtain custody of aliens believed to be
removable who were held by state or local law enforcement. And it 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.
In addition to 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 significantly contributed to the
United States.
Immigration enforcement priorities shifted under the Trump Administration. In a 2017 executive order,
President Trump pledged “to employ all lawful means to enforce the immigration laws of the United
States” and “to ensure the faithful execution of the immigration laws of the United States against all
removable aliens.” He directed DHS to prioritize the removal of aliens found to be removable on certain
criminal and national security-related grounds; aliens arriving at the border without valid documents and
recent unlawful entrants; aliens who had committed any criminal offense; aliens who engaged in
immigration-related fraud or “abused any program related to receipt of public benefits”; aliens subject to
a final removal order who failed to depart as required; and aliens who posed “a risk to public safety or
national security.” In adopting this policy, then-DHS Secretary John Kelly announced that the agency “no
longer will exempt classes or categories of removable aliens from potential enforcement.”
In his 2017 executive order, President Trump also directed DHS to restore the Secure Communities
program. President Trump also ordered DHS to enter into agreements with state or local authorities under
Section 287(g) of the Immigration and Nationality Act (INA), authorizing those authorities to carry out
certain immigration enforcement functions in cooperation with the federal government. The Obama
Administration had generally limited the use of 287(g) agreements and terminated agreements in some
states. Conversely, the Trump Administration expanded their use, with DHS signing 23 agreements with
localities in Texas alone.
In addition to 287(g) agreements, DHS, on January 8, 2021, entered into a separate Memorandum of
Understanding with Texas, whereby the state agreed to “provide information and assistance to help DHS
perform its border security, legal immigration, immigration enforcement, and national security missions,”
including honoring detainer requests. In exchange, DHS agreed to “consult with Texas before taking any
action or making any decision that would reduce immigration enforcement,” including pausing or
decreasing deportations. The agreement required DHS to provide 180 days’ notice of any proposed action
to reduce immigration enforcement, as well as an opportunity to comment on the proposal. Additionally,

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the agreement provided that, in the event of any breach of the agreement, an aggrieved party could bring a
cause of action in a U.S. District Court in Texas.
Apart from these enforcement initiatives, DHS under the Trump Administration also moved to rescind the
DACA program, relying on then-Attorney General Jeff Sessions’s conclusion that DACA lacked “proper
statutory authority,” as well as a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit that held
unlawful the Obama Administration’s planned expansion of DACA to cover a broader category of
persons, along with the planned implementation of a similar initiative aimed at parents of U.S. citizens
and lawful permanent resident aliens. However, federal district courts enjoined the Trump
Administration’s rescission of DACA following legal challenges. In 2020, the Supreme Court ruled that
the DACA rescission was unlawful on procedural grounds, but the Court did not rule on the legality of
DACA itself.
The Biden Administration’s Immigration
Enforcement Priorities
On January 20, 2021, President Biden revoked President Trump’s 2017 executive order on immigration
enforcement priorities and directed DHS to implement new policies that protect national and border
security, address “humanitarian challenges at the southern border,” ensure public health and safety, and
safeguard the “dignity and well-being of all families and communities.” On that same day, then-Acting
DHS Secretary David Pekoske issued a memorandum directing DHS officials to conduct a “Department-
wide review” of the agency’s immigration enforcement policies, including those relating to detention,
prosecutorial discretion, and cooperation with state and local law enforcement. The memorandum also
established “interim civil enforcement guidelines” pending DHS’s review that generally limited
immigration enforcement actions to cover only certain categories of aliens.
On February 18, 2021, DHS’s Immigration and Customs Enforcement (ICE) issued guidance
implementing the interim enforcement guidelines (the interim guidance is in effect until DHS Secretary
Alejandro Mayorkas issues new enforcement guidelines, expected within 90 days of issuance of the ICE
guidance). The ICE guidance memorandum identifies the following categories of aliens as priorities for
enforcement and removal:
ï‚· individuals who have engaged in or are suspected of terrorism or espionage, or whose
apprehension or detention is otherwise necessary to protect the security of the United
States;
ï‚· individuals apprehended at the border or ports of entry while trying 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; and
ï‚· individuals who pose a threat to public safety, and either (1) have been convicted of an
aggravated felony, or (2) have been convicted of an offense for which an element was
active participation in a criminal street gang, or (if they are not younger than 16 years of
age) have participated in an organized criminal gang or transnational criminal
organization.
The ICE guidance provides that the priorities are to be applied to a wide range of enforcement decisions,
including whether to initiate or pursue removal proceedings; whether to stop, question, or arrest an alien;
whether to detain or release an alien; whether to issue a detainer; whether to grant deferred action; and
when to execute a final removal order. The ICE guidance permits enforcement actions against aliens who
do not meet the criteria for priority cases (taking into account certain aggravating and mitigating factors),
but only with advance supervisory approval. If there are exigent circumstances (e.g., the alien poses an

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imminent threat to life or an imminent substantial threat to property), and securing preapproval is
impracticable, the enforcement action is permitted so long as the officer conducting the action requests
approval within 24 hours.
In addition to setting interim enforcement guidelines, then-Acting Secretary Pekoske, on January 20,
2021, ordered a “100-day pause” on the removal of any alien with a final order of removal pending
DHS’s review of its immigration enforcement policies. He claimed that “unique circumstances” resulting
from the Coronavirus Disease 2019 (COVID-19) pandemic have created “operational challenges” at the
southern border, and that the agency’s limited resources should be directed toward its “highest
enforcement priorities.” The 100-day pause, however, does not apply to (1) an alien whom the ICE
Director determines or suspects to have engaged in terrorism or espionage, or who poses a danger to
national security; (2) an alien who was not physically present in the United States before November 1,
2020; (3) an alien who has knowingly and voluntarily agreed to waive any rights to remain in the United
States; or (4) an alien for whom the ICE Director determines removal is required by law.
In conjunction with this recalibrating of immigration enforcement priorities, President Biden in a January
20, 2021, memorandum instructed the DHS Secretary “to preserve and fortify” DACA, noting that
program “reflects a judgment that these immigrants should not be a priority for removal based on
humanitarian concerns and other considerations.”
Legal Challenge in Texas v. United States
The State of Texas filed a lawsuit in the U.S. District Court for the Southern District of Texas challenging
DHS’s 100-day pause on deportations. Texas argued that the 100-day pause (1) violated the January 8,
2021, agreement between the state and DHS because the agency failed to notify and consult with Texas
before announcing the 100-day pause; (2) violated INA § 241(a)(1)(A), which provides that DHS “shall
remove” an alien subject to a final order of removal within a period of 90 days (excepted in limited
circumstances); (3) violated the Constitution’s command that the President (and by extension executive
agencies) “take care that the Laws be faithfully executed”; and (4) violated provisions of the
Administrative Procedure Act (APA) because the agency departed from previous policy without adequate
justification, and failed to provide public notice and opportunity to comment on the proposed change.
Initially, the court issued a Temporary Restraining Order (TRO) against the “100-day pause,” providing
immediate relief while the court considered Texas’s motion for a more lasting, preliminary injunction
pending a final ruling in the case. Several weeks later, the court issued a preliminary injunction. The court
declined to consider whether DHS violated the January 8, 2021, agreement with Texas, reserving
judgment on that question for later, and concluding that Texas had standing to bring the challenge even in
the absence of that agreement. The court determined that the 100-day pause likely violates INA §
241(a)(1)(A), which the court construed as a “mandatory command” that an alien “shall” be removed
within 90 days of a final removal order. The court disagreed with the government’s contention that its
broad discretion over immigration enforcement restricted the court’s ability to review its decision to
suspend deportations. While recognizing that the executive branch enjoys broad discretion over many
aspects of immigration enforcement, the court determined that such discretion still must be exercised “in
the manner in which Congress has prescribed.” Noting that INA § 241(a)(1)(A) permits the government to
exceed the 90-day removal period only in limited circumstances, the court stated that the statute “does not
imply total discretion to pause or suspend a statutory mandate” for nearly all aliens with final removal
orders, as the court deemed would occur if the 100-day pause went into effect.
The court further ruled that DHS’s suspension of removals likely violates the APA’s requirement that
agencies offer reasoned explanations for policy changes. The court concluded that DHS failed to
articulate how an expansive 100-day pause on the deportation of most aliens is “logically and reasonably
connected” to the agency’s need to reassess its immigration enforcement priorities and resources. The

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court also held that the 100-day pause likely violates the APA’s separate requirement that agencies must
generally provide the public with advance notice and an opportunity to comment on proposed agency
rules. Finally, in the court’s view, Texas would suffer irreparable harm without an injunction because the
100-day pause would lead to increased costs for detention facilities, public education, and other public
benefits and services for unlawfully present aliens.
The court thus enjoined DHS from implementing the 100-day pause pending the outcome of Texas’s legal
challenge to that policy. The court ordered that the injunction would apply on a nationwide basis. The
court relied on its previous determination, when granting a TRO, that the nationwide scope of injunctive
relief would ensure the application of uniform immigration policies throughout the United States. Of note,
the preliminary injunction does not bar DHS from reviewing its immigration enforcement priorities,
implementing its “interim civil enforcement guidelines” pending that review, or exercising discretion
whether to pursue removal of aliens in individual cases.
Legal Considerations
The Biden Administration’s 100-day pause prompts questions about the extent to which the federal
government may decline to enforce federal immigration laws. The pause would suspend action against
most of the over 1.19 million aliens subject to final orders of removal. On one hand, DHS is tasked with
immigration enforcement, including the removal of unlawfully present aliens. And INA § 241(a)(1)(A)
generally requires removal of an alien with a final removal order within a period of 90 days (subject to
limited exceptions, such as if the alien prevents removal). On the other hand, the Supreme Court has
recognized that the executive branch has “broad discretion” over immigration enforcement, including the
authority to prioritize some cases over others. And courts and immigration authorities sometimes have
construed statutes providing that agencies “shall” take enforcement action as still allowing some degree of
enforcement discretion. Still there are arguably limits to the scope of that discretion. Typically,
immigration authorities have exercised their discretion on an individualized, case-by-case basis. But some
contend that such discretion cannot be similarly applied on a large, programmatic scale without
constituting an abdication of an agency’s statutory duties. Thus, Texas argues that DHS cannot create
“sweeping, categorical rules” that exempt “the vast majority of illegal aliens.” In granting a preliminary
injunction, the federal district court ruled, among other things, that the 100-day pause violates INA §
241(a)(1)(A)’s clear and “unambiguous” command that DHS must execute final removal orders. While
recognizing DHS’s broad discretion over immigration enforcement in individual cases, the court
determined that the agency does not have unfettered discretion to issue “a blanket pause on removal.”
The district court found it unnecessary to consider whether DHS’s January 2021 agreement with Texas is
a “binding and enforceable commitment” that limits the agency’s ability to exercise enforcement
discretion without first consulting with Texas. As mentioned above, the agreement enables Texas to seek
injunctive relief in the event that DHS does not give 180 days’ notice and consult with the state before
taking any actions covered by the agreement. This includes any action that “could reduce immigration
enforcement, increase the number of removable or inadmissible aliens in the United States, or increase
immigration benefits or eligibility for benefits for removable or inadmissible aliens.” Regardless of the
outcome of this case, it seems likely that a court may be required to assess the legal force of the
agreement in the event that DHS alters immigration enforcement policies in a way that “could reduce
immigration enforcement” without notifying and consulting with Texas.
While the litigation preventing implementation of the 100-day “pause” on deportations has had some
immediate effect on the Biden Administration’s immigration enforcement plans, a potentially more
consequential court decision is looming on the legality of DACA. Since its inception in 2012, DACA has
provided a legal reprieve to hundreds of thousands of otherwise removable aliens who arrived in the
United States as children. As mentioned above, while the Trump Administration attempted to rescind the

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program, the Supreme Court ruled that the Administration did not take the appropriate procedural steps to
end the program. And a lower court subsequently ordered DHS to resume processing new DACA
applications, which had been halted by the Trump Administration. Upon taking office, President Biden
instructed immigration authorities “to preserve and fortify” DACA, which has shielded many unlawfully
present aliens from removal. The U.S. District Court for the Southern District of Texas is now poised to
rule on the legality of DACA. In 2018, Texas and a number of other states challenged the program as an
unlawful exercise of the executive branch’s authority. That same year, the federal district court hearing
that challenge concluded that the plaintiffs had not demonstrated the type of harm and certain other
factors that would support a preliminary injunction blocking DACA pending a final ruling in the case. But
the court did opine that DACA was likely unlawful, reasoning that while DHS may defer removal in
specific cases, exercising that discretion to grant relief to a large class of aliens contravenes the INA’s
statutory scheme. Almost three years later, the district court will likely rule again on DACA’s legality on
the state’s motion for summary judgment. In the years between, some lower federal courts reviewing the
Trump Administration’s attempted rescission of DACA opined that the program was a lawful exercise of
DHS’s enforcement discretion (the Supreme Court did not reach this issue when holding that the DHS’s
rescission violated the procedural requirements of the APA). But given the Texas court’s prior ruling,
there is reason to believe that it may view the DACA initiative as unlawful. Regardless, the court’s ruling
seems certain to prompt further litigation at the appellate level.
While policymakers’ interest in immigration enforcement has primarily centered on executive action and
litigation challenging those actions’ lawfulness, Congress also may play a determinative role. Congress
has regularly considered or enacted legislation that prioritizes the removal of certain categories of aliens
(e.g., terrorists, criminal aliens, gang members), limits enforcement actions in certain locations, restricts
the detention of certain low-priority aliens, or provides temporary or permanent relief to some otherwise
removable aliens. And Congress, through the annual appropriations process, can have a profound effect
on enforcement decisions that are premised on the availability of resources. Legislation already has been
introduced in the 117th Congress that responds to executive enforcement priorities. The Biden
Administration, for instance, has announced support for companion bills (S. 348, H.R. 1177) that would,
among other things, confer lawful permanent resident (LPR) status on certain aliens who had entered the
United States as children and meet other requirements (including DACA recipients). The bill would also
provide temporary protections to aliens physically present in the United States who meet specified
requirements (e.g., not being subject to disqualifying criminal bars), and would enable them to pursue
LPR status after a period of time. The bill would also prohibit the detention and removal of certain alien
victims of human trafficking, domestic violence, and other specified criminal activity who have pending
applications for immigration benefits. And the bill would expand the use of Alternatives to Detention
programs for removable aliens.

Author Information

Hillel R. Smith

Legislative Attorney




Disclaimer

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