Biden announces 100-day deportation moratorium

The Biden administration announced a 100-day moratorium on deportations on Wednesday night, putting a halt to Trump-ordered measures removing certain migrants.

New acting director for the Department of Homeland Security David Pekoske the pause on deportations, set to being on Friday, Jan 22., for "certain noncitizens ordered deported," and DHS said that it would "suspend" adding people to a controversial Trump-imposed "Migrant Protection Protocols" regime that required asylum-seekers to stay in Mexico while their cases are pending in U.S. courts.

Pekoske said that for 100 days, DHS will "pause removals for certain noncitizens ordered deported to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety." 

The pause is one of several immediate changes to U.S. immigration and border policies made by the Biden administration, including an order to halt border wall construction, the end of what has often been termed the "Muslim Ban," and an expansion of Deferred Action for Childhood Arrivals, or DACA. 

The pause on deportations could affect as many as 1.3 million cases that are currently pending in front of the nation's courts. 

The Biden administration also announced that it would suspend enrollments to the Migration Protection Protocols, or MPP. The Trump program, originally termed "Remain in Mexico," required asylum-seekers to stay in Mexico while they await their asylum cases in the United States, leaving thousands waiting for months, even more than a year, for their cases to come up. 

There are 24,250 MPP cases currently pending before immigration courts, according to data compiled by the Transactional Records Access Clearinghouse, a nonpartisan project based at Syracuse University. And an estimated 1,276 people are waiting in Nogales, Sonora, for their cases to come up at the immigration court in El Paso, Texas — nearly 300 miles away. 

"However, current COVID-19 non-essential travel restrictions, both at the border and in the region, remain in place at this time," DHS said. "All current MPP participants should remain where they are, pending further official information from U.S. government officials." 

The Biden administration also noted that people outside of the U.S. will "not be eligible for legal status" under the bill Biden sent to Congress on Wednesday. "The legalization provisions in that bill apply only to people already living in the United States." 

Pekoske signed a memorandum on Wednesday, directing parts of DHS, including U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services to "review and reset enforcement policies and set interim policies for civil enforcement while the Department develops its final priorities." 

"The United States faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century," said Pekoske in a memo sent to DHS staff. "In light of those unique circumstances, the Department must surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security." 

The memo follows an executive order signed by President Joe Biden on Wednesday evening that revoked one of Trump's executive orders, that had directed DHS to significantly expand the deportations of immigrants in the interior of the United States. Trump's order, or Executive Order 13768, also attempted to pull funding from so-called "sanctuary cities," a policy that was curtailed by multiple successful legal challenges.

"Immigrants have helped strengthen America's families, communities, businesses and workforce, and economy, infusing the United States with creativity, energy, and ingenuity," the new Biden order read. "The task of enforcing the immigration laws is complex and requires setting priorities to best serve the national interest.  The policy of my Administration is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.  We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities."

"My administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities," the Biden E.O. declared. 

Earlier on Wednesday, the ACLU praised some of the changes already put in place by the Biden administration, and said the Biden-Harris administration "must fulfill its commitment to a deportation moratorium by ensuring that people are not unjustly deported starting today."

The ACLU praised the new administration's revocation of Trump's interior enforcement executive order, calling it "a welcome first step," and said that the new administration should "also dismantle Immigration and Custom Enforcement's tools of racial profiling and abuse — including the 287(g) program." The 287g program has long been controversial, but that accelerated under the Trump administration. "Further, the new administration must close immigration detention facilities and release people from detention, particularly given the record number of deaths, increased use of force, repeated sexual abuse, inadequate COVID-19 protections, and coercive sterilization in these facilities in recent years," the ACLU said. 

In Pekoske's order, the chief of staff at DHS will "coordinate a department-wide review of policies and practices concerning immigration enforcement."

Each agency will develop "recommendations to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets." The agencies will also address how to "exercise prosecutorial discretion," consider policies governing detention, and review policies that guide how DHS and its component agencies work with state and local law enforcement. 

"These recommendations shall ensure that the Department carries out our duties to enforce the law and serve the Department’s mission in line with our values," Pekoske wrote. "The Chief of Staff shall provide recommendations for the issuance of revised policies at any point during this review and no later than 100 days from the date of this memo."

"Due to limited resources, DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States," Pekoske wrote. "Rather, DHS must implement civil immigration enforcement based on sensible priorities and changing circumstances. DHS’s civil immigration enforcement priorities are protecting national security, border security, and public safety."

He noted that while the policy was being completed, DHS will still maintain three priorities for enforcement. This includes national security, border security, and public safety. 

Most notably, the priorities would include people who were apprehended at the border, or at U.S. ports of entry, on or before November 1, 2020, as well as people who were not physically present in the U.S. before November 1, 2020. 

Priorities would also include people suspected of terrorism, espionage, or whose arrest is "otherwise necessary to protect the national security of the U.S., The priorities would also focus on people 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,” under Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.

The three priorities — echoing the Obama administration's own priority-enforcement program, that was launched in 2015 and rescinded by Trump — should apply to a "board range" of discretionary decisions, covering not just the Notice to Appear forms that are filed by ICE, but also would guide how agents decide "whom to stop, question, and arrest," as well as "whom to detain or release." ICE attorneys at the U.S. immigration courts could also use the priorities to decide "whether to settle" or dismiss a case, appeal a decision, and "whether to grant deferred action or parole." 

"While resources should be allocated to the priorities enumerated above, nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein," the acting director wrote.