One of President Biden’s key immigration campaign promises was implementing a 100-day moratorium on deportations once he took office. He delivered on that promise last week when the Acting DHS Secretary issued a memorandum on January 20, 2021 calling on DHS to take 100 days to “coordinate a Department-wide review of policies and practices concerning immigration enforcement” and to immediately halt all deportations for 100 days while DHS was carrying out its review, beginning on January 22.
The day the deportation moratorium went into effect, Texas Attorney General Ken Paxton sued the Biden Administration, requesting a temporary restraining order against DHS. The AG claimed that the moratorium violated an agreement it had signed with outgoing Trump officials just days earlier, which required DHS to give Texas notice and an opportunity to comment at least 180 days before making any chances to immigration enforcement policies. This agreement, which former acting deputy secretary of the DHS Ken Cuccinelli signed with multiple jurisdictions, was designed to delay the Biden administration from “taking any action or making any decision that could reduce immigration enforcement” or that could increase the number of unauthorized immigrants living in the US, according to court filings. It not only requires that DHS provide advance notice of such changes, but that it also considers state and local authorities’ input and “provide a detailed written explanation” if it decides to reject that input.
It remains to be seen whether these agreements are even enforceable, given that Ken Cuccinelli may not have had the authority to sign the agreements in the first place since the GAO found he was unlawfully appointed to his position. The Biden Administration is also arguing that the agreements are unenforceable because an outgoing administration cannot “contract away” an incoming administration’s plenary power over the enforcement of federal immigration law to the states. Despite the serious constitutional issues implicated by these agreement, US District Judge Drew Tipton granted Texas’s request for a temporary restraining order on January 26, 2021, preventing the Biden administration from pausing deportations for a period of 14 days. Following a status hearing on January 29, 2021, the TRO was extended until February 23, 2021.
The good news is that Judge Tipton only restricted the portion of the January 20, 2021 DHS Memo calling for the moratorium on deportations. The same memo also effectively eliminated all of the Trump administration’s previous “enforcement priorities,” and instituted a set of “interim guidelines” for immigration enforcement. Under the guidelines, which are set to go into effect on Monday, February 1, only three groups are considered a “priority” for enforcement:
- Individuals who are suspected of terrorism or espionage.
- Individuals who entered the United States after November 1, 2020.
- Individuals convicted of an “aggravated felony” who are released from criminal custody after January 20 and who ICE believes are a threat to public safety.
The memo also revoked a series of Trump-era policies, including a policy that required U.S. Citizenship and Immigration Service to put people whose applications for visas were denied into removal proceedings.
Stay tuned for more updates on the immigration policies under the new Biden Administration. Be sure to also check out the other immigration actions President Biden took during his first week in office.