From the earliest days of the Trump administration, extreme and disturbing stories emerged of families and communities being ripped apart by a bolstered and increasingly aggressive Immigration and Customs Enforcement (ICE). Over the past four years, anyone in the United States without legal status became a priority for enforcement, leading to an agency that focused on arresting, among others, parents dropping their children off at school, survivors of domestic violence seeking protective orders at courts, and a 10-year-old child in an ambulance on the way to the hospital for emergency surgery. This ill-advised and cruel approach culminated in the horrific practice of separating children from their parents at the border, an action the Trump administration undertook knowing full well that it would be nearly impossible to reunite all of the families it separated. The parents of hundreds of separated children have not yet been located, with some families perhaps separated permanently.
Even in the last few months of the Trump administration, federal agencies’ flagrant violations of the law continued. In mid-August, ICE deported a 29-year-old asylum seeker “despite the lack of a deportation order and before he even had his first appointment in immigration court.” In December, news broke that Customs and Border Protection (CBP) had expelled at least 66 unaccompanied children in contravention of a federal judge’s order. In both cases, the government admitted its wrongdoing in court.
With this illegality as a backdrop, the Biden administration took action on day one with a memorandum from acting Department of Homeland Security (DHS) Secretary David Pekoske announcing a top-to-bottom review of the agency’s immigration policies and implementing a 100-day moratorium on deportations. Under the moratorium, any individual with a final deportation order—with certain exceptions, including national security risks and recent arrivals—would not be removed from the United States during the 100 days. As Tom Jawetz previously wrote for the Center for American Progress, a pause on deportations is a critical first step to allow a comprehensive review to take place, uncover the full extent of the damage that the Trump administration wrought on immigration policy, and start to move policymaking and enforcement toward a more fair, humane, and workable system.
Put simply, the extreme and illegal actions of the Trump administration on immigration warrant an immediate pause on deportations so that the Biden administration can sort through the wreckage and ensure that no one is illegally or unnecessarily expelled.
In addition to the 100-day review of existing immigration policy, the new memo also returns to a sensible set of interim guidelines for enforcement. The guidelines from the Biden administration identify three priority categories: people deemed to pose a serious threat to national security; people who entered the United States on or after November 1, 2020; and people deemed to pose a serious threat to public safety. The memo underscores that for individuals who are not a priority for enforcement, DHS officials should exercise discretion on whether or not to bring an enforcement action in the first place, detain someone, or grant a form of relief such as deferred action.
Texas attempts to halt the pause
Yet just days after the executive action was issued, the state of Texas won a 14-day nationwide temporary restraining order to stop the deportation moratorium while litigation continues. In entering the temporary restraining order, U.S. District Judge Drew Tipton found that the state was likely to prevail on at least two arguments: namely, that immigration law commands the removal within 90 days of any person with a final order of removal and that the policy was arbitrary or capricious because it was not adequately justified.
With respect to the first argument, the Supreme Court has held for decades that the decision of whether to pursue removal rests entirely in the hands of the executive through every stage of the process. Last June, in the case preserving the Deferred Action for Childhood Arrivals (DACA) program, the court took pains throughout its opinion to make clear that DHS has full authority to adopt a policy forbearing from removal. In this case, the administration did not decide to “abandon the endeavor” of pursuing removal, as the Supreme Court wrote in Reno v. American-Arab Anti-Discrimination Committee, but merely hit the pause button to review cases in the pipeline and design a sensible set of priorities to govern future enforcement actions.
Moreover, the January 20 memorandum expressly anticipates this challenge to the statutory provision cited by Tipton. For people currently in removal proceedings and for anyone in detention with an order of deportation more than 90 days old, the memorandum directs ICE to set up an individualized process whereby individuals can have their cases reviewed to see if “alternatives to removal”—including reopening deportation cases or granting deferred action—might be a better alternative.
The second argument—that the memorandum does not provide “concrete, reasonable justification for a 100-day pause on deportations”—similarly falls flat. It is precisely ICE and CBP’s history of illegal and unwise removals under the Trump administration, as well as the need to get to the bottom of the full extent of the Trump administration’s twisting of enforcement to suit its anti-immigrant goals, that makes the moratorium so important to put in place to give the administration time to right the ship.
Because of just how important the 100-day pause is to moving immigration policy toward a better place, the courts must allow the moratorium to go into effect as soon as possible. Once that happens, it is critical for the Biden administration to hold ICE accountable so that the agency does, in fact, follow the moratorium. This executive action, once implemented, will allow the new administration to take the time it needs to truly align immigration enforcement with American values and begin to move the nation toward a more fair and just system.
And of course, what comes after the first 100 days is as important as what happens during the moratorium. As CAP has previously written, DHS cannot go back to business as usual. Instead, the federal government must pursue a range of reforms, from making detention the exception rather than the norm to expanding affirmative relief for people who are not priorities for enforcement. Ultimately, however, executive action can only go so far. It is up to the new Congress to pass urgently needed legislation that will put undocumented immigrants—including Dreamers, Temporary Protected Status (TPS) holders, and essential workers—on a pathway to citizenship and implement a more humane enforcement regime.
Philip E. Wolgin is the managing director of Immigration Policy at the Center for American Progress. He thanks Tom Jawetz and Marshall Fitz for their feedback on this column.