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President Biden has issued several executive orders and policies that seek to reverse those implemented under the previous administration.  The “Muslim travel ban” has been rescinded, immigrants will not be excluded from the census, DACA will remain, the public charge rule will be reviewed, the number of refugee resettlements have been increased, and a few others initiatives were made.  More importantly for many of our clients, President Biden also issued an executive order contained in the memorandum posted by the U.S. Department of Homeland Security.  This announcement made on January 20, 2021 prioritizes who may be pursued for deportation or not.

Former President Trump had eliminated the long-standing practice of immigration priorities, placing all undocumented individuals at risk of deportation, even immigrants who were trafficked or victims of violent crimes and those who lacked a criminal record. This order restored priorities on who gets targeted for removal and who does not.  Prior to the 2017, enforcement of U.S. immigration law had been historically guided by policies that emphasize prioritization due to limited resources. It would be analogous to the fact that the local prosecutor does not take every case, especially every speeding ticket, to trial, because it would take away their time and resources to prosecute homicides and other violent crimes – and is willing to dismiss cases outright or reduce charges and sentencing possibilities in exchange for a plea of guilt.

Biden Executive Order Priorities

This new Biden memorandum restored immigration enforcement priorities with instructions for DHS, effective January 22, 2021. The new priorities included the following limited exceptions:

  1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
  2. Border security. Individuals apprehended at the border or ports of entry while attempting 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. 3.
  3. Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.

In addition to these new priorities, Biden announced a pause or moratorium of deportations of any other non-citizens ordered removed for 100 days.  Unfortunately, the State of Texas sued the U.S. government to stop the January memorandum from taking effect, arguing that the deportation pause violates federal law that harms the State of Texas. On January 26, 2021, Judge Tipton in Texas (appointed to the federal court by Trump) issued a 14-day nationwide temporary restraining order blocking the enforcement of President Biden’s 100-day moratorium on deporting undocumented individuals. Although the order does not prevent the Biden administration from prioritizing who gets deported or not, it allows the status quo to remain for ICE to deport anybody with a removal order regardless of whether they are a priority or not. Judge Tipton is currently considering a permanent injunction that would extend it longer, and recently extended the temporary order until later this month in February.

The Biden administration is expected to appeal the decision, but has failed to prevent certain deportations by ICE in the meantime, including the deportation of an immigrant who witnessed the El Paso massacre at a Walmart and cooperated with law enforcement in its investigation – and was likely eligible to remain in the United States through a visa due to her cooperation. The Biden administration will continue to be challenged not only by the former administration’s policies, but the enormous bureaucracy that can resist implementation of new policies.

Despite the challenges, there is some good news arising from this executive order, regardless of what happens with the federal restraining order.  The Biden administration rescinded a Trump administration memorandum that stated that any and all immigrants applying for a greencard, a visa, or any other benefit before U.S. Citizenship and Immigration Services would be automatically placed in removal proceedings if their application was denied.  This was one of the worst practices under the Trump administration, where, for example, victims of crimes or trafficking seeking a U or T visa, or women who sought Violence Against Women Act relief as the victims of domestic violence, could be deported for trying to do the right thing in obtaining legal status in the United States. The Trump policy essentially discouraged cooperation with law enforcement, put another gigantic obstacle of fear for domestic violence victims to overcome, and created more reasons for immigrants not to seek legal status. This will no longer be the case based on the Biden Executive Orders. Furthermore, for individuals in removal proceedings who are not a priority for deportation, individuals may possibly seek their case to be administratively closed, a form of prosecutorial discretion and temporary relief from deportation if they can show, for instance, that their removal would affect their American children, families, and communities in a devastating way.  Much remains to be seen, but the fight for justice and due process in immigration law will go on.

If you need legal advice, we are here to assist you with all your immigration matters.