The past few months have seen significant changes to U.S. immigration policy as the new administration gets to work under President Biden. Here are some highlights of the more notable changes.1
Of the many aspects of the prior administration’s immigration policy, its focus on Southern Border fencing (i.e., “the Wall”) is perhaps the most well-known. Specifically, on January 25, 2017, former President Trump signed Executive Order 13767, entitled “Border Security and Immigration Enforcement Improvements.”2 Among other items, that Executive Order directed the Secretary of Homeland Security to “immediately plan, design, and construct a physical wall along the southern border” of the United States.3
However, on February 2, 2021, President Biden issued Executive Order 14010, which explicitly revoked Executive Order 13767. More recently, the Department of Defense released a statement cancelling all border barrier construction projects paid for with funds originally intended for military missions and projects.4
If you’ve ever struggled with insomnia, spend some time with the statutes and implementing regulations about “public charge” requirements for immigration benefits. It’s 100% guaranteed to get you a solid 8 hours of rest (and lawyers don’t get a lot of guarantees in our line of work, especially about sleep).
Aside from the brain-numbing nature of the information, however, this area is extremely important because the “public charge” requirements form significant — and frequently mandatory — requirements for many individuals who are properly applying for lawful immigration benefits.
Summarized, the Immigration and Nationality Act, subject to certain exceptions and requirements, contains potential disqualifications for individuals seeking immigration benefits if it appears that the individual “is likely at any time to become a public charge…”.5
On August 14, 2019, the prior administration, through the Department of Homeland Security, published a “Final Rule” – weighing in at over 200 single-spaced pages – which was explicitly intended to change how the Department interpreted and implemented this “public charge” rule.6
In a related press release issued shortly before publication in the Federal Register, the agency offered a summary of some of the sweeping changes ushered in by the Final Rule, including increased scrutiny of applications, and significant expansions of the types of public benefits which could bar an individual from receiving approval of their immigration case. 7
These changes created a cacophony of litigation, including injunctions, stays, and appeals, too numerous and detailed to fully explore herein. Indeed, at one point, the Final Rule was effective in domestic filings nationwide, except in Illinois where it remained enjoined8, at least before that injunction itself was stayed by the U.S. Supreme Court.9
However, the 2019 Final Rule was ultimately vacated on the merits by the District Court for the Northern District of Illinois on November 2, 2020.10 Although that judgment was stayed pending appeal, that appeal was itself withdrawn by DHS during the current administration on March 9, 2021, meaning the District Court’s vacatur of the 2019 Rule went into effect.11
As a result, DHS has now published a new final rule which removes the 2019 Final Rule from the Code of Federal Regulations, and which restores the text to its status prior to the 2019 Rule. (Sleepy yet?)
On January 25, 2017, the prior administration released Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.”12 That Order greatly expanded the enforcement priorities of the Department of Homeland Security.13 For instance, DHS was instructed to prioritize the removal of individuals based not only on “pending” criminal charges, but even on as-yet-uncharged criminal conduct.14 That EO was revoked on President Biden’s first day in office.15 Appropriate agency heads were directed to review current actions and issue revised guidance in accordance with the broad policies expressed in the new Executive Order.
That same day, the Acting Secretary of DHS issued a Memorandum for ICE, CBP, and USCIS (another immigration agency component).16 Among other items (including a later-enjoined, and now-expired, “pause” of certain deportations for a period of 100 days), the Memo established interim priorities for civil immigration enforcement.17
Under that Memo, DHS’s enforcement priorities fall under three broad categories: (1) individuals who are a threat to national security; (2) individuals apprehended at the border on or after November 1, 2020, or otherwise not physically present in the United States on or before November 1, 2020; and (3) individuals who are a threat to “public safety,” such as individuals who had been convicted of an “aggravated felony.”18
Those priorities were later the subject of interim guidance issued on February 18, 2021.19 Although that interim guidance made certain modifications and/or clarifications to the earlier policy statements of DHS, it largely incorporated the three enforcement categories which had been previously adopted.20 It additionally included, as a “public safety” enforcement priority, individuals who had been convicted of an offense which involved being a member of a street gang, or who had otherwise participated in an organized criminal gang or transnational criminal organization.21
The finalized enforcement priority memorandum has not yet been issued as of the time of writing this article.
As a practical matter, this final topic may have the most relevance for the non-immigration practitioner, as it deals with prior administration policy regarding civil immigration enforcement against individuals located inside State and Local courthouses for non-immigration-related cases.
Specifically, on January 10, 2018, the former administration released “Directive 11072.1”, which addressed the policies under which civil immigration enforcement actions (i.e., arrests) would be effectuated against individuals while they were inside federal, state, and local courthouses. Among other policy instructions, the Directive ultimately gave individual ICE Officers and agents the ability to “make enforcement determinations on a case-by-case basis in accordance with federal law and consistent with U.S. Department of Homeland Security (DHS) policy.”22
However, on April 27, 2021, the Department of Homeland Security (DHS) issued a memo to all personnel for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).23 That memo established the limited circumstances in which civil immigration enforcement actions may be carried out in or near a courthouse, and superseded prior ICE policy. Under the new policy, a civil immigration enforcement action may generally be taken in or near a courthouse only in limited instances, such as national security matters, cases where there is an imminent risk of death or harm, hot pursuit, or an imminent risk of destruction of evidence in a criminal case.24
These changes are only a small part of the vast overhaul of U.S. immigration policy currently underway. And while the ultimate outcome of this overhaul is yet to be seen, it is clear our current administration has taken an intentionally different tack than the last.
Somers is the manager and owner of Blake P. Somers LLC. His practice focuses on Immigration, Criminal Law, Family Law, and Appellate Litigation, as well as the intersection thereof. He has also handled a number of matters reaching beyond the borders of the United States, and is a member of the U.S. Department of State’s “Attorney Network” for the Hague Convention on the Civil Aspects of International Child Abduction.
1 This article is limited to guidance issued on or before June 1, 2021.
2 https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements/
3 Id.
4 https://www.defense.gov/Newsroom/Releases/Release/Article/2591993/dod-release-regarding-cancellation-of-border-barrier-project-cancellation/
5 See generally, 8 U.S.C. §1182(a)(4) et seq.
6 See, https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf (84 Fed.Reg 41294)(Aug. 14, 2019).
7 See, https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-enforcing-long-standing-public-charge-inadmissibility-law
8 http://web.archive.org/web/20200206144938/https://www.uscis.gov/i-864
9 See, Wolf v. Cook County, 589 U.S. ____ (2020); https://www.supremecourt.gov/opinions/19pdf/19a905_7m48.pdf
10 https://www.govinfo.gov/content/pkg/FR-2021-03-15/pdf/2021-05357.pdf (86 Fed.Reg 14221)(March 15, 2021).
11 Id.
12 https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/
13 Id.
14 Id. at Sec.5(b)&(c).
15 See, Executive Order 13993, available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/, at Sec. 2
16 https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-memo_signed.pdf
17 Id.
18 Id.
19 https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf
20 Id.
21 Id.
22 https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcementActionsCourthouses.pdf
23 https://www.dhs.gov/news/2021/04/27/dhs-announces-new-guidance-limit-ice-and-cbp-civil-enforcement-actions-or-near; see also, https://www.ice.gov/sites/default/files/documents/ciEnforcementActionsCourthouses2.pdf
24 Id.