Legal Sidebari
The Biden Administration’s Immigration
Enforcement Priorities: Background and
Legal Considerations
Updated December 10, 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. 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President Biden rescinded some of the Trump Administration’s immigration initiatives and directed DHS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 January 2021, DHS issued temporary
immigration enforcement guidance pending that review. The interim guidance generally focused
enforcement activities toward certain aliens who pose a threat to national security, border security, or
public safety. Following legal challenges brought by Texas and Louisiana, a federal district court
preliminarily enjoined DHS from implementing this policy. A panel of the U.S. Court of Appeals for the
Fifth Circuit initially issued a partial stay of the injunction. However, the en banc Fifth Circuit vacated the
panel’s decision on November 30, 2021, effectively reinstituting the preliminary injunction while
litigation continues.
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In the midst of these judicial developments, DHS announced new immigration enforcement guidelines in
September 2021 that supersede its earlier guidance. The district court’s preliminary injunction halting
implementation of the January guidance does not affect DHS’s implementation of the September 2021
enforcement guidelines. Texas and Louisiana, however, have amended their complaint in the lawsuit
against the January 2021 guidelines to challenge the September 2021 guidelines. Separately, the States of
Arizona, Montana, and Ohio have legally challenged the September 2021 guidelines.
Apart from seeking to establish new immigration enforcement policies, President Biden announced an
intent “to preserve and fortify” the Deferred Action for Childhood Arrivals program, which has been in
place since 2012 and 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. A federal district court, however,
subsequently ruled that the DACA initiative is unlawful, and the government has appealed that decision.
This Sidebar addresses the Biden Administration’s immigration enforcement priorities and legal
considerations that they raise. Legal developments surrounding the DACA program are addressed in other
CRS products.
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
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. 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.
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 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
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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,
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 the conclusion of then-Attorney General Sessions 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. 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 intended to balance border security,
public safety, and humanitarian considerations. Shortly afterward, then-Acting DHS Secretary Pekoske
issued a memorandum directing DHS officials to review the agency’s immigration enforcement policies.
The memorandum, in conjunction with guidance issued by DHS’s Immigration and Customs
Enforcement (ICE), established “interim civil enforcement guidelines” pending that review. These
guidelines generally limited immigration enforcement actions to cover certain aliens who pose a threat to
national security, border security, or public safety. Under this framework, aliens prioritized for removal
included those who engaged in activities related to terrorism or espionage, had entered the United States
after November 1, 2020, were convicted of aggravated felonies, or were members of criminal gangs or
transnational criminal organizations. The Pekoske memorandum also announced a “100-day pause” on
the removal of any alien with a final order of removal, with limited exceptions.
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More recently, on September 30, 2021, DHS Secretary Mayorkas announced new immigration
enforcement guidelines. In a memorandum to DHS components, Secretary Mayorkas asserted that DHS
lacks the resources to pursue the removal of every alien who is subject to removal, and that many
otherwise removable aliens have been “contributing members of our communities for years.” Secretary
Mayorkas argued that “[t]he fact an individual is a removable noncitizen therefore should not alone be the
basis of an enforcement action against them.” Accordingly, he announced that DHS would use its
discretion and resources to prioritize the apprehension and removal of aliens who fall within three distinct
categories: (1) Threat to National Security, (2) Threat to Public Safety, and (3) Threat to Border Security.
Aliens falling within the “Threat to National Security” category include those who are engaged in
activities relating to terrorism or espionage, or who otherwise pose a danger to national security. Aliens
falling within the “Threat to Public Safety” category generally include those who engaged in “serious
criminal conduct,” but the guidelines require consideration of aggravating and mitigating factors—rather
than the mere fact of a criminal conviction—in assessing whether enforcement action is warranted.
Finally, aliens are considered “Threat to Border Security” priorities if they are either (1) apprehended at
the border or a port of entry while attempting to unlawfully enter the United States; or (2) apprehended
within the United States after unlawfully entering after November 1, 2020. The guidelines note that other
border security cases with “compelling facts” could warrant enforcement action, and the guidelines
require consideration of mitigating or extenuating circumstances in border security cases.
The new immigration enforcement guidelines went into effect on November 29, 2021, replacing the
interim guidelines issued at the beginning of 2021.
Legal Challenges to Immigration Enforcement Policies
The Biden Administration’s immigration enforcement initiatives have been subject to legal challenge. A
number of lawsuits were brought almost immediately following DHS’s issuance of interim enforcement
guidelines in January 2021. In response to a lawsuit by the State of Texas, the U.S. District Court for the
Southern District of Texas in February 2021 preliminarily enjoined DHS from implementing the 100-day
pause on removals announced by the interim policy. (The court did not reach the question of whether
DHS violated its January 8, 2021, agreement with Texas by failing to notify and consult with the state
before altering its enforcement priorities. Nor did it reach the question of whether that agreement was
legally valid.) The court determined that the 100-day pause likely violated INA § 241(a)(1)(A), which
provides that an alien generally “shall” be removed within 90 days of a final removal order. While
recognizing that the executive branch enjoys broad discretion over immigration enforcement, the court
declared that such discretion still must be exercised “in the manner in which Congress has prescribed.”
The court also ruled that the 100-day pause was likely unlawful because DHS offered no reasoned
justification for changing its policy, and failed to provide notice and opportunity for the public to
comment on the proposal.
In a separate case, the States of Texas and Louisiana sued in the U.S. District Court for the Southern
District of Texas to challenge DHS’s interim enforcement guidelines directing agency components to
focus enforcement efforts on those aliens who are a threat to national security, border security, or public
safety. The district court in August 2021 preliminarily enjoined DHS from enforcing the guidelines. The
court ruled they likely violated INA provisions that mandate the detention of a broader category of aliens
who have committed a wide range of enumerated criminal offenses or who are already subject to final
orders of removal. Echoing its analysis in the 100-day pause litigation, the court declared that DHS “may
not dispense with a clear congressional mandate under the guise of exercising ‘discretion.’” Additionally,
the court ruled, DHS’s interim guidelines were unsupported by reasoned decisionmaking and issued
without notice and comment procedures.
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Initially, a three-judge panel of the Fifth Circuit partially stayed the district court’s injunction pending
adjudication of the government’s appeal. The court determined that the INA’s mandatory detention
provisions apply to aliens who are already arrested and placed in removal proceedings. On the other hand,
the court explained, these statutory mandates do not restrict DHS’s ability to determine, in its discretion,
who should be subject to investigative and enforcement action in the first place. The panel thus stayed the
injunction to allow DHS to rely on the interim guidelines to decide whether to investigate or initiate
formal removal proceedings against an alien, but permitted the injunction to go into effect to the extent it
prevents DHS from relying on the guidelines with respect to those who are already placed in removal
proceedings and subject to mandatory detention.
On November 30, 2021, the en banc Fifth Circuit vacated the panel’s opinion issuing the stay, allowing
the district court's preliminary injunction barring reliance on the interim enforcement guidelines to remain
in place while the court of appeals considers the case. Significantly, the injunction does not address the
superseding enforcement guidance issued by DHS that went into effect in November 2021. In the ongoing
litigation concerning the interim guidelines, however, Texas and Louisiana have filed an amended
complaint to challenge the newer guidelines as well, but no ruling has been made. In a separate case, the
States of Arizona, Montana, and Ohio have also legally challenged the superseding guidelines.
Legal Considerations
The Biden Administration’s attempt to reprioritize immigration enforcement efforts prompts questions of
perennial interest to lawmakers regarding the scope of executive discretion in enforcing immigration
laws, and the extent to which resource limitations and policy preferences may inform enforcement
priorities. Based on previous estimates of the impact of similar immigration enforcement guidelines, the
Biden Administration’s new immigration enforcement guidelines could exempt many removable aliens
from enforcement efforts. DHS’s ability to apprehend and detain all removable aliens in the United
States, however, is limited by resource constraints. For that reason, DHS argues, it must focus its
enforcement resources mainly on those aliens who pose a threat to public safety, border security, or
national security.
The Supreme Court has recognized that the INA confers on the executive branch “broad discretion” over
immigration enforcement, including the authority to prioritize some cases over others. Further, courts and
immigration authorities sometimes have construed statutes providing that agencies “shall” take
enforcement action as still allowing some degree of enforcement discretion. There are, however, arguable
limits to the scope of that discretion. Typically, immigration authorities have exercised their discretion on
an individualized, case-by-case basis. Thus, plaintiffs challenging DHS’s enforcement priorities during
the Biden Administration have argued that the agency’s discretion is not so broad as to allow “sweeping,
categorical rules” that exempt “the vast majority” of removable aliens from immigration enforcement.
When reviewing not only legal challenges to DHS’s immigration enforcement priorities generally, but
also the ability of the executive branch to implement DACA or similar programmatic reprieves from
removal for large segments of the unauthorized population, lower courts have reached conflicting views
on where to draw the line between permissible exercises of enforcement discretion and the unlawful
violation of statutorily prescribed immigration enforcement responsibilities.
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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. Congress, through the annual appropriations process, can also have a profound effect
on enforcement decisions that are premised on the availability of resources. Legislation has been
introduced in the 117th Congress that responds to executive enforcement priorities, including bills that
would, among other things, confer lawful permanent resident status on certain unlawfully present aliens.
Most recently, a provision of a House budget reconciliation bill, the Build Back Better Act (H.R. 5376),
would enable many otherwise removable aliens to remain in the United States temporarily under “parole”
status (a discretionary authorization to be physically present in the United States for “urgent humanitarian
reasons or significant public benefit” without being granted lawful admission).
Author Information
Hillel R. Smith
Legislative Attorney
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