By: Katarina Gomez
Throughout President Biden’s election campaign, many promises were made relating to immigration, including a deportation moratorium. It has now been several weeks since Biden has been in office, and immigration advocates are frustrated and angry because noncitizens are continuing to be deported.[1] They want to know why.
On Biden’s first day in office, the Department of Homeland Security (“DHS” or “Department”) released a policy memorandum, titled “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities.”[2] The memorandum set interim enforcement priorities, while the Department reviewed and revised the current enforcement policies.[3] The Department stated that the interim enforcement priorities are national security, border security, and public safety.[4] In contrast, President Trump widely expanded DHS’ enforcement priorities and brought back the Bush-era “Secured Communities” program.[5] In addition to the enforcement priorities, the Memorandum included a 100-day pause on removals of any noncitizen with a final order of removal.[6] Advocates applauded Biden for coming through on his promise.
Not everyone was happy, though. Two days later, Texas Attorney General, Ken Paxton, filed a lawsuit challenging it as unlawful.[7] On January 26, 2021, a District Court in Texas granted Paxton a Temporary Restraining Order (“TRO”), enjoining DHS from executing the 100-pause on removals.[8] The Court explicitly stated that the TRO was for Section C of the Memorandum, titled “Immediate 100-Day Pause on Removals.”[9] Importantly, it made no mention of the other sections of the Memorandum, including the section relating to enforcement priorities.
Despite the Court temporarily ordering that DHS cannot move forward with its categorical pause on deportations, DHS can still exercise its long held authority to halt deportations on a case-by-case basis through prosecutorial discretion. The Immigration and Nationality Act (“INA”) grants the Secretary of Homeland Security “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens. . . .”[10] The INA also states that the Attorney General has the authority to “review . . . administrative determinations in immigration proceedings [and] delegate such authority.”[11] The Department’s discretion concerns a wide range of enforcement decisions, including, but not limited to, deciding whether to execute a removal order, whom to detain or release from ICE custody, and whether to stay a final order of removal.[12]
In a 2011 Memorandum, the then-ICE Director provided the agency with factors to consider when determining whether to exercise prosecutorial discretion.[13] The first factor on that list is “the agency’s civil immigration enforcement priorities.”[14] Granted, there is a long list of factors to consider in any given case. However, the memo states that “decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”[15]
With the exception of the 100-day pause on deportations, the January 20 Memorandum continues to be in effect. However, immigrant communities and advocates continue to witness ICE engage in activity that completely contradicts the new DHS policies. The Biden administration has a chance to make good with its promise to halt deportations. DHS must choose to exercise its discretion in individual cases and refrain from executing removal orders and ensure that ICE is adhering to the enforcement priorities laid out in the January 20 Memorandum.
[1] Nomaan Merchant, Hundreds deported under Biden, including witness to massacre, AP News (Feb. 1, 2021), https://apnews.com/article/biden-administration-deports-hundreds-482889ed56ed3cd02c9c61ebd1e3fbb7.
[2] Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Jan. 20, 2021), https://www.dhs.gov/sites/default/files/publications/21_0120_enforcementmemo_signed.pdf [hereinafter January 20 Memorandum].
[3] Id.
[4] Id.
[5] Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).
[6] January 20 Memorandum, supra, at 3.
[7] Complaint, Texas v. United States, No. 6:21-cv-00003 (S.D. Tex. Jan. 22, 2021), ECF No. 1.
[8] Ord. Granting Plaintiff’s Motion for Temp. Restraining Ord., Texas v. United States, No. 6:21-cv-00003 (S.D. Tex. Jan. 26, 2021), ECF No. 16.
[9] Id.
[10] Immigration and Nationality Act of 2011 (INA) § 103(a), 8 U.S.C. § 1103(a) (2011).
[11] Id.
[12] Memorandum from John Morton, Director, U.S. Immigr. and Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
[13] Id.
[14] Id.
[15] Id.
