Understanding the Biden Administrations New Moratorium on Deportations

On January 20, 2021, President Joe Biden signed an Executive Order enacting a 100-day deportation moratorium in order for the Department of Homeland Security to conduct a “review of policies and practices concerning immigration enforcement.” The memo also puts into place interim policies with respect to immigration enforcement during the 100-day period, allowing the agency to proceed with certain types of enforcement and removal.

The move comes as the Biden administration seeks to undo many of the anti-immigrant policies enacted by the Trump administration, including policies related to detention, enforcement, and the southern border. The moratorium announcement comes as ICE has continued to arrest and detain people in the midst of the COVID-19 pandemic, with more than 14,000 immigrants detained nationwide. 

The memo went into effect on February 1, 2021, and quickly became the subject of litigation after being partially blocked from being enforced by a federal judge in Texas. 

The memo was welcomed by many immigration advocates after a four-year period in which the Trump administration essentially eliminated enforcement priorities and indiscriminately sought to terrorize and arrest as many undocumented individuals as possible. However, advocates have also noted that the idea of a return to Obama-era enforcement policies should not be accepted. 

Biden has gone on record saying that the high rate of deportations during the Obama administration was a “big mistake” and that Biden “vowed to do better.” Advocates tracking the issue have also vocally lamented the fact that the Biden administration has remained silent on ending the use of private detention in the immigration context despite campaign promises to do so. The issue is a large sticking point given that over 70% of individuals in immigration detention are detained at privately operated facilities. 

Background 

“The pause will allow DHS to ensure that its resources are dedicated to responding to the most pressing challenges that the United States faces, including immediate operational challenges at the southwest border in the midst of the most serious global public health crisis in a century,” the Department of Homeland Security said.

The memo does include some exceptions to who may be subject to deportation during the moratorium: 

1. Those who entered the United States on or after November 1, 2020;

2. Those who are engaged or suspected of engaging in terrorism or espionage, or U.S. Immigration and Customs Enforcement (ICE) believes you pose a danger to national security or

3. Those who choose to be deported.

The memo also creates exceptions for individuals who may still be targets for ICE enforcement and arrest. This includes:

1. Individuals who have arrived in the United States on or after November 1, 2020;

2. Individuals who have been released from a federal, state, or local prison or jail on or after January 20, 2021, have been convicted of an offense defined by federal immigration law as an “aggravated felony” and are determined to pose a threat to public safety; or

3. Individuals who are engaged or suspected of engaging in terrorism, espionage, or ICE believe you pose a danger to national security.

Federal Court Ruling and Future 

The deportation moratorium by Biden was halted before it could go into effect after U.S. District Judge Drew Tipton issued a ruling in favor of Texas, who asked for a temporary restraining order in their suit against the Biden administration. The judge said the Biden administration had failed “to provide any concrete, reasonable justification for a 100-day pause on deportations.”

The injunction was initially set to expire after 14 days but has since been extended through February 23, 2021. 

The ruling does not block the memo entirely but is limited to individuals with final removal orders, allowing ICE to proceed with their removals. The memo’s delineation of new enforcement priorities for ICE is still allowed to go into effect, and the agency can still exercise discretion with respect to enforcement and detention.

The ruling was slammed by immigration advocates, with National Immigrant Justice Center Executive Director Mary Meg McCarthy stating, “The Texas court’s decision is based on a faulty interpretation of the law and racist arguments akin to those which drove the very decisions in the previous administration that President Biden’s moratorium policy was intended to review. Already, we are seeing signs that the anti-immigrant sentiment which defined U.S. Immigration and Customs Enforcement during the past four years is still present.”

If you have questions or concerns about the 100-day moratorium and how it may apply to you or your family, please contact a qualified immigration attorney. 

Five issues the Biden administration must address on immigration

The electoral victory of Joe Biden over Donald Trump is cause for relief and celebration for many, but perhaps none more than immigrants and those who work to protect their rights. For four years, the Trump administration actively and openly worked to undermine legal protections for immigrants coming to or residing in the United States and instituted draconian policies designed to terrorize, brutalize, and criminalize immigrants. Now, as the country prepares for a new administration, many are wondering what immediate steps Biden may take to address the damage done by Trump on immigration. 

According to the New York Times, the Trump administration enacted more than 400 changes to the immigration process. Some of those policy changes were implemented through executive orders, which can easily be overturned, while others went through the full regulatory process and will take time to change.

As attorneys and advocates at Immigrant Legal Defense (ILD), we remain committed to protecting all immigrants' dignity and due process and will demand accountability from every presidential administration. The following are five critical areas the Biden administration must address to correct the wrongs our immigrant communities face. 

Protect DACA

The Biden administration should take immediate steps to protect and restore the Deferred Action for Childhood Arrivals (DACA) program, something which he pledged to do during his campaign. The Trump administration sought to end the DACA program in 2017, resulting in a lengthy legal battle and leaving more than 800,000 DACA recipients in limbo for years. 

Protecting and restoring the DACA program would not only provide DACA recipients with stability and support and allow for new applications but also help restore trust and faith between federal officials and immigrant communities. This trust is more critical now than ever as our society works to come together to confront challenges like COVID-19 and economic instability.

The restoration of DACA should be viewed as a simple and immediate step of a broader push to provide Dreamers and other immigrants a pathway to full citizenship, but it is an important place to start for the Biden presidency. Because DACA was initiated through an executive action, it is squarely within the President’s purview to restore the program, though a more permanent solution to the issue will need to come from Congress.

Uphold TPS Status

A similar opportunity for immediate action for the incoming Biden administration exists on the issue of Temporary Protected Status (TPS), which, like DACA, has left the fate of hundreds of thousands of immigrants in limbo for years. The sudden loss of status for TPS holders, some of whom have been residing in the United States for decades, would be disastrous, especially during a global pandemic. 

Read more about the fight over TPS in our previous blog posts here. 

Unlike DACA, which provides protection to a class of undocumented immigrants based on specific criteria, TPS status has been awarded to individuals from various countries at different periods of time based on conditions in their home country. As a result, any decision to include or exclude certain subgroups can present certain complications. For example, some may argue that TPS should end for certain countries that are no longer the scene of specific conflicts or humanitarian disasters. Advocates would counter that many of those countries now face new challenges that will make them unsafe for return and that those who have resided in the United States, often with mixed-status families, should be allowed to stay. 

Taken in the context of the prior four years, the global pandemic, and the need to favor inclusion over exclusion, the restoration of TPS across the board should serve as a natural starting point for the Biden administration.

The Biden campaign stopped short of promising to keep TPS in place across the board and instead promised to “immediately review every TPS decision made by the Trump administration and overturn all those that do not appropriately consider the facts on the ground.” 

The issue could serve as an early indication as to whether the Biden administration will seek to promote policies focused on compassion, providing humanitarian relief, and ensuring family unity or pursue a hard-line approach on these issues. 

Abolish ICE & Detention

The Trump administration will go down in history for its barbaric treatment of immigrants, weaponizing federal agencies as tools for fear, family separation, and the detention of immigrants. One of the central pillars of the Trump administration's reign of terror against immigrants was the utilization of Immigration and Customs Enforcement (ICE) as a tool to spread panic, conduct raids, and expand detention. 

Although the use of ICE to conduct raids and facilitate detention was not unique to the Trump administration, with many rightly pointing out that the Obama administration also carried out immigration raids, it was the callous cruelty and malice with which ICE operated under Trump that has led many to call for the abolition of the agency as a whole.

In July of 2019, Trump attempted to use the threat of mass raids to force Congress to pass legislation on asylum, effectively holding undocumented communities hostage and using federal agencies as stormtroopers in communities of color. Countless examples of ICE abuse and cruelty were documented during his tenure, arguably peaking in 2020 when news came out of forced hysterectomies in ICE detention and a dramatic increase in deaths in detention. 

This track record is the reason why so many believe that ICE should be abolished as an institution, along with immigrant detention, which is both needless, cruel, and counterproductive. After so much horror and heartbreak, the Biden administration should reimagine immigration detention policy by dismantling this rogue agency.

To date, Biden has not made a clear commitment to dismantle ICE, though he has promised to end the use of for-profit corporations, which make up more than half of all detention facilities nationwide. Biden has also committed to implementing a “100-day freeze on deportations while his administration issues guidance” on enforcement priorities. 

As a result, it is important for advocates and allies of immigrants to ensure that the Biden administration does not simply revert to Obama-era policies on enforcement and detention, which resulted in a broad-based detention system and millions of deportations.

Change Border Policies and Safeguard Asylum

There is perhaps no clearer example of the Trump administration’s cruelty than its policies at U.S. borders, including the “Muslim” travel ban, the destruction of asylum protections, and inhumane family separation. Each of these policies had devastating impacts on individuals and their families and resulted in needless suffering for millions of people. The treatment of immigrants, migrants, and asylum seekers at the border forms the foundation of immigration policies and practice, and careful attention should be paid to what the Biden administration does in this arena. 

Biden has made a commitment to immediately end the travel ban as soon as he begins his term, and has pledged to “[R]eassert America’s commitment to asylum-seekers and refugees”, claiming that he will take steps to reverse Trump border and asylum policies within 100 days of being in power. According to a New York Times report, “Mr. Biden also plans to raise the cap on refugee admissions to 125,000, impose a 100-day moratorium on deportations, and direct Immigration and Customs Enforcement to focus on violent offenders.” In addition, Biden has also indicated that he will reverse draconian measures at the U.S.-Mexico border, including the “Remain in Mexico” program, which forced migrants seeking asylum in the U.S. to remain in Mexico while they awaited their day in court. 

Many of these reversals are a welcome sign for advocates and asylum seekers, though the Biden administration has yet to provide specifics about an affirmative agenda related to asylum and migrants. It is imperative to not only demand that the Biden administration safeguard asylum laws but also a clear push to defund agencies such as ICE and CBP, which enforce family separation and invest in institutions that help resettle migrants, reunify families, and expand asylum to adapt to the modern and future challenges posed by climate change, global inequality, and mass displacement. 

Restore Trust in the Process

One of the most serious and devastating blows to the immigration process in this country under the Trump administration has been the erosion of trust, transparency, and fairness in the immigration process. This includes the destruction of due process, accountability, and fairness in immigration courts, the use of executive orders to attack immigrants, or the shift of United States Citizenship and Immigration Services (USCIS) from an agency designed to confer benefits to an agency of exclusion, led by an alleged white supremacist. A hallmark of the Trump era has been to undermine or disrupt all levels of the immigration process, severely restricting legal immigration into the country.

The impacts of these policies on America’s immigration process are significant and will likely take years to undo. The process will include attempting to deal with millions of cases that have been disrupted or denied proper adjudication before agencies like USCIS, the Department of State, and the immigration courts, while the longer-standing challenge will be to repair faith between these institutions and those who access or work with them. It is difficult to estimate the impact that these policies have had on immigrants awaiting a visa appointment abroad or those inside the country seeking to apply for benefits, but it is not difficult to believe that serious damage has been done.

To begin the process of restoration and healing, the Biden administration should make time and space to meet with community members, impacted people, and advocates in order to develop partnerships and solutions to move forward. Careful consideration should be paid to restoring due process, transparency, and fairness in the immigration process. Restoring trust can also begin with repealing and removing policies that increase fees for immigration applications, expedite deportations, or seek to deny immigrants status based on their use of certain types of public assistance.

This process will not happen overnight, but the early steps of the Biden administration will go a long way in building an immigration platform that works for everyone. 

Each of these five areas will provide a critical test for the Biden administration's ability to work with and protect immigrants and will require renewed dedication and vigilance from advocates and organizers. The election of Biden is certainly a reason for optimism, but we must continue to demand immediate restoration, protection, and expansion of the rights of our communities.

As we prepare for the transition to a new presidency, ILD will remain steadfast and determined in advocating for our clients, our community, and a country made by and for immigrants.