Executive Order (13993) : Revision of Civil Immigration Enforcement Policies and Priorities

On February 3, 2021 this writer published a post titled “Biden’s Executive Orders and Presidential Memorandums on Immigration Obscure the Facts.” That post presented evidence that the Trump Administration’s immigration policies, based on actual outcome statistics, were, in large part, more generous or, depending on your perspective, less punitive to illegal and legal immigrants and, in other respects, equivalent to Obama era policies.

Today’s post launches a series of commentaries which will examine each immigration-related Biden Executive Order in detail.

Almost immediately following his inauguration, Biden signed Executive Order (13993) titled “Revision of Civil Immigration Enforcement Policies and Priorities.”  This order specifically revoked Trump’s Executive Order (13768) titled “Enhancing Public Safety in the Interior of the United States” which was published in January 2017.

But was Trump’s executive order so egregious that it needed to be revoked?

Consider the following…

Trump’s order was focused on interior enforcement of immigration laws and those who try to and/or successfully enter the United States illegally (approximately 872,000 attempted illegal border crossing apprehensions by Customs and Border Patrol in 2019) as well as those who overstay (676,000 in 2019 alone) and, in other respects, violate the terms of their visas and/or who presented a significant threat to national security and public safety by virtue of their criminal conduct.  

What specific actions were implemented pursuant to Trump’s Executive Order 13768?

1. It resurrected the Secure Communities Program, implemented under the Bush Administration and initially expanded under the Obama Administration until it was ultimately terminated in 2014. The program was designed to identify immigrants in U.S. jails who are eligible to be deported under immigration law by having participating jails submit the fingerprints of those arrested to immigration databases. From the program’s inception in 2008 through the date it was terminated, some 379,000 undocumented criminal aliens were deported.

2. It established a list of enforcement deportation priorities tied to criminal offenses and chargeable criminal activity by individuals including those who engage in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; those who abused any program related to receipt of public benefits; those who have been previously told to depart the United States but have not done so; and those who in the judgment of an immigration officer, otherwise pose a risk to public safety or national security. 

These priorities would appear to be consistent with a goal of simply enforcing existing law with a focus on those who broke our laws while being in the country illegally.  Critics of Executive Order 13768 on the other hand expressed concern that it was too broad (it did not distinguish between misdemeanors and felonies) and therefore threatened virtually all undocumented immigrants with deportation, regardless of the seriousness of the crime or how long they had been in the country.

3. It increased the number of 287(g) agreements, which allow DHS to deputize select state and local law-enforcement officers to perform the functions of federal immigration agents. These deputized officers may interview individuals to determine their immigration status; check their documents against DHS databases; issue “detainers” (which instruct a state or local law enforcement agency to hold a suspected removable individual for up to 48 hours after the scheduled time of release so that ICE can assume custody); and issue a Notice to Appear (NTA). The latter is the official charging document that begins the removal process.

4. It sought to bring to task those state and local jurisdictions that declared themselves places of sanctuary for illegal aliens. In that regard, the Department of Justice (DOJ) and DHS explored actions they could take to ensure that U.S. jurisdictions limiting their cooperation with DHS were not eligible to receive federal grants, except as deemed necessary for law-enforcement purposes.

There are, in fact, specific federal statutes that require state and local officials to aid federal immigration authorities… specifically  Section 1373(a) of Title 8 of the U.S. Code says state and local governments can’t ban officials from sending or receiving information regarding the immigration or citizenship status of people to the Department of Homeland Security.  However, one of the basic tenets of federalism and the Tenth Amendment is that the federal government cannot commandeer states and cities by compelling them to actively enforce federal laws at their own expense. Which means that state and local governments cannot be forced to enforce federal immigration law, i.e., they can decide to allocate as few resources to this endeavor as they deem desirable.  States and municipalities have exploited this loophole and effectively established themselves as sanctuary jurisdictions to the detriment of American citizens and lawful permanent residents.

5. It charged the Secretary of State with the responsibility to undertake negotiations with foreign countries to ensure that in order to receive foreign aid these other countries commit to accepting the return of their nationals upon deportation. 

6. It created The Victims of Immigration Crime Engagement (VOICE) Office.

7. It authorized the hiring of 10,000 more Enforcement and Removal officers, subject to funding by Congress.

Taken together, all of the above seem quite reasonable.

So what policy has Biden formulated that will take its place?

In fact, we do not know because the executive order that Biden signed revoking the Trump order is lacking in any specificity.  Instead, it generally references a set of policies that have yet to be developed that will “protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety … and adhere to the due process of law.”

I would offer that the litmus test of any governmental policy is whether it is consistent with the legislation under which it is promulgated and in the interests of the citizens and lawful permanent residents of the United States.

We will have to wait and see if Biden’s ultimate policy passes that test.