New Biden rules would limit arrest, removal of migrants

A man in a dark suit and striped tie, standing at a lectern next to a U.S. flag, gestures with his hands
Homeland Security Secretary Alejandro N. Mayorkas holds a news briefing at the White House on Sept. 24, 2021.
(Patrick Semansky / Associated Press)

Facing bipartisan criticism over its approach to immigration, the Biden administration on Thursday announced new rules that require authorities to pursue only migrants who recently crossed into the country without permission or are deemed to pose a threat to public safety.

The new guidelines replace interim rules issued in February that were initially blocked by a federal judge in August as part of a lawsuit brought by Texas and Louisiana. They break from a more aggressive approach to immigration enforcement under Donald Trump, who early in his presidency directed authorities to apprehend anyone who was in the country illegally.

The release comes as President Biden has come under fire from allies for his reliance on a Trump-era public health authority to rapidly expel migrants found on the U.S.-Mexico border while also facing Republican criticism that he hasn’t done enough to counter a sharp increase in the number of migrants seeking to enter the country. His administration has expelled about 5,000 Haitians who crossed the U.S.-Mexico border at Del Rio, Texas, in recent weeks.


Homeland Security Secretary Alejandro N. Mayorkas told reporters that the new policy was based on the reality that the U.S. can’t go after all people in the country without legal status and shouldn’t try because many “have been contributing members of our communities for years.”

Authorities will be directed to focus on noncitizens who have crossed recently, defined as after Nov. 1, 2020, or who have been determined to be a threat because of national security or “serious criminal activity.” Homeland Security includes U.S. Immigration and Customs Enforcement and the Border Patrol.

Unlike the interim rules, the criminal activity is not limited to the category known in legal terms as an aggravated felony but will depend on the “totality of the facts and circumstances,” Mayorkas said. Anyone would be considered a priority if they are engaged in or even suspected of terrorism or espionage, according to the memo. The new rules take effect Nov. 29.

Immigration authorities would be prohibited from arresting and seeking to expel someone in retaliation for exercising 1st Amendment rights, such as joining a protest or taking part in union activities.

“We are requiring and frankly empowering our workforce, critically empowering our workforce, to exercise their judgment, their law enforcement judgment,” the secretary said.

Advocates for strict immigration enforcement have criticized the interim guidelines, which were similar in intent as the newly released rules, because they were seen as a top-down approach and one that precluded low-level arrests that might yield investigative leads into bigger cases or help serve as a deterrent to illegal immigration.

Sen. Tom Cotton (R-Ark.) said on Twitter that with the new rules, Biden has “welcomed” the migrants who have crossed and would now promise those already in the country that “they may stay in the U.S. without repercussions.”

Immigrant advocates, including some who previously called for eliminating ICE and immigrant detention altogether, welcomed limits on enforcement but are wary given the rapid detention and expulsion of thousands of Haitians at Del Rio.

“This policy is only going to be as good as the results,” said Jacinta Gonzalez, senior campaign organizer of the advocacy group Mijente. “If detention numbers continue to rise, as deportations continue to happen, if we still see human rights abuses at the border, this policy won’t mean anything.”

A federal judge in Texas blocked the interim rules in August, ruling that the administration did not have discretion to choose which migrants to detain, but a federal appeals court allowed the guidelines to take effect while the lawsuit proceeds.

Mayorkas said it makes little sense to pursue all of the estimated 11 million people in the country without legal status, even if the U.S. had the law enforcement capacity to do so.

“They contribute to the well-being of our country and justice requires that we exercise our discretion accordingly,” he said. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them.”

Trump’s administration took hundreds of measures to restrict both legal and illegal immigration, including a zero-tolerance policy on border crossings that resulted in the forcible separation of thousands of families and the requirement that asylum seekers await the processing of their cases in Mexico.

In the end, total deportations were higher during the first term of President Obama, who enacted enforcement priorities similar to Biden’s, than under Trump. That was due in part to a lack of cooperation by many cities and states whose leaders opposed Trump’s immigration policies.