Prosecutorial Discretion in a Biden Administration, by Shoba Sivaprasad Wadhia
On January 20, 2021, President Joe Biden signed several executive actions to reverse many of the harshest immigration measures crafted under the Trump administration and to create a humane immigration system. A summary list of these immigration changes appears below.
This commentary focuses on policy changes intersecting with a primary area of my research: prosecutorial discretion.
Prosecutorial Discretion refers to a choice made by the Department of Homeland Security (DHS) about whether to enforce the immigration laws against a person or group of people. This kind of discretion is necessary because Congress has directed DHS to set priorities for enforcement and because of limited resources. I have also explored the humanitarian dimension of discretion and the relationship between individual circumstances like long term residence, serious medical issues, or advanced or tender age and positive discretion.
On January 20, 2021, President Biden revoked the Executive Order (EO) operational under the Trump administration titled Enhancing Public Safety in the Interior of the United States. That EO listed a broad set of priorities and without a mention about when and how prosecutorial discretion could be applied. The EO also listed anyone with a removal order as actual priorities for removal, a sharp departure from how discretion was applied in the past. This EO, coupled with the way immigration enforcement was applied on the ground, created a landscape where the was no real prioritization or humane discretion. When examining immigration enforcement, one advocate working with communities under the Trump administration told me: “Everyone is a priority. It doesn’t matter if you’ve been in the country twenty years and you’ve never committed a crime and you are on your way to Sunday school. You are a priority.”
Importantly and also on January 20, 2021, DHS under the Biden administration issued a memorandum titled “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities.” The memo applies agency wide to all components of DHS and significantly, announces a 100-day “pause” on immigration removals. The pause applies to individuals in the United States with a formal order removal on the effective date with some exceptions for national security related reasons, those not physically present in the United State on November 1, 2020, and those who have voluntarily waived their rights to remain in the United States provided they have been notified about the consequences of doing so or based on determination that removal is required by law.
The new DHS memo directs the Chief of Staff to review “policies and practices concerning immigration enforcement” and to use this review as a guide for prioritization and prosecutorial discretion. Consistent with how guidance documents before the Trump administration were framed, the new memo recognizes the limited resources of DHS and the impossibility of removing every person living in the United States without documentation.
The new memo sets the following as DHS’s enforcement priorities: 1) national security, 2) border security, and 3) public safety. These priorities are labeled as “interim” pending DHS’s complete review of its enforcement policies. While the listed priorities are broad at first glance, the definitions used by DHS are narrower than previous guidance documents. For example, DHS defines “public safety” to those convicted of an “aggravated felony” (a term of art in immigration law) and who after the conviction is a public safety threat. Like with most guidance documents, setting priorities is imperfect and can lead to labels that create groups that are deserving of protection and those who worthy of targeting for enforcement. Further, the devil will be in how the memo is implemented. The interim priorities are effective February 1, 2021.
Beyond setting priorities, the DHS memo identifies the many different forms and stages of prosecutorial discretion, steps I have studied in previous work. According to the memo:
These priorities shall apply not only to the decision to issue, serve, file or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including decision: whom to stop, question, arrest; whom to detain or release whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole.
As no guidance under the Trump administration acknowledged the stages at which discretion may be exercised, it is refreshing to see them articulated in the new memo. One new policy made in the January 20 memo is with regard to the relationship between COVID-19 and detention decisions.
Remarkably, the January 20 DHS memo is among the first to utilize the phrase “noncitizen” or “noncitizens,” dignifying those living in the United States without documentation and departing from earlier agency use of “alien” or “illegal alien” in similar documents. Words matter and by using terms that are more inclusive and humanizing, DHS has set a new tone that I hope transforms how the government talks about immigration and immigrants.
Unremarkably, the new memo includes a “No Private Right” statement to confirm that the document creates no substantive or procedural right or benefit. This kind of language has been part of guidance documents on prosecutorial discretion for decades, and was triggered in part by litigation traffic from the 1970s I elaborate more upon here.
Finally, the memorandum issued by President Biden on January 20, 2021, to “fortify” the Deferred Action for Childhood Arrivals (DACA) policy is an important component of his prosecutorial discretion policy as it solidifies a position that DACA recipients are low priorities for enforcement and should be protected under prosecutorial discretion through deferred action.
Together, these announcements sent a positive signal about the future of prosecutorial discretion in the Biden administration and a reminder that how discretion is used matters.
Shoba Sivaprasad Wadhia is a law professor and immigration scholar at Penn State Law at University Park. She is the author of two books: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press) and Banned: Immigration Enforcement in the Time of Trump, (NYU Press).
Summary List of Immigration Policies
White House, Memorandum for the Attorney General and Homeland Security Secretary, January 20, 2021
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)
The Secretary of Homeland Security, in consultation with the Attorney General, shall take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.
White House, Memorandum for the Attorney General and Homeland Security, Reinstating Deferred Enforced Departure for Liberians, January 20, 2021
The Secretary of Homeland Security extended DED protections for certain Liberians through June 30, 2022
Immigration Enforcement and Discretion
White House, Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities, January 2021
Executive Order 13768 of January 25, 2017 (Enhancing Public Safety in the Interior of the United States), is hereby revoked.
White House, Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction, January 20, 2021
This Proclamation terminates construction of the border wall.
Department of Homeland Security, Memorandum Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities, January 20, 2021
“Due to limited resources, DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States. Rather, DHS must implement civil immigration enforcement based on sensible priorities and changing circumstances. …, I am directing an immediate pause on removals of any noncitizen1 with a final order of removal (except as noted below) for 100 days to go into effect as soon as practical and no later than January 22, 2021.” This memorandum also rescinds several previous immigration enforcement policies.
Muslim and African Travel Bans
White House, Proclamation on Ending Discriminatory Bans on Entry to The United States, January 20, 2021
“The previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries. Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all. Executive Order 13780, and Proclamations 9645, 9723, and 9983 are hereby revoked.”
Department of Homeland Security, Press Release, January 20, 2021
The Department announced that it was ceasing the Migration Protection Protocols Program