The memo is the first step in a broader plan to find a different solution for the 11 million undocumented immigrants in the United States, many of whom have lived here for years and have U.S.-citizen children. Many are essential workers — delivery workers, caregivers, even physicians — but Congress has not passed a major citizenship bill since 1986.
Biden has unveiled legislation that would allow millions to apply for citizenship, following in the footsteps of former presidents George W. Bush (R) and Barack Obama (D), who attended his inauguration Wednesday, and also advocated, albeit unsuccessfully, for immigration reform.
Trump took a starkly different approach, often characterizing immigrants as criminals and winning praise from his team for taking the “shackles” off immigration agents and allowing them to deport anyone, including immigrants arrested for traffic offenses.
Despite spending billions of dollars to jail record numbers of immigrants, Trump did not deport as many people as his predecessor, in part because of major resistance from immigration lawyers and “sanctuary” jurisdictions that refused to hand over immigrants to the federal government for deportation after they were arrested for state or local crimes.
In the memo, Pekoske ordered DHS’ chief of staff to review the agency’s immigration policies over the next 100 days and recommend revisions.
The memo applies to U.S. Immigration and Customs Enforcement (ICE), which enforces immigration laws in the interior of the United States, U.S. Customs and Border Protection (CBP), which patrols ports and borders, and U.S. Citizenship and Immigration Services (USCIS), which handles applications for immigration benefits such as green cards and citizenship.
During the review, the agency said it will impose “sensible priorities” for enforcing civil immigration laws. Starting Feb. 1, immigrants eligible for deportation will fall into three categories: National security threats, such as spies or terrorists, border crossers who arrived on or after Nov. 1, and aggravated felons currently serving time for crimes such as murder or drug trafficking, after they are released from prison.
But the memo contains an escape clause, saying that “nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein.” And immigrants who voluntarily waive their rights to remain in the United States, after seeking legal counsel, may be deported.
Biden has said it was a “big mistake” to deport as many people as the Obama administration did, when Biden was vice president.
The Obama administration also attempted to focus on recent border crossers and people convicted of a broader array of crimes, but the immigration agencies took years to adjust, with attempts to limit enforcement in 2011 and again in 2014. Some of the language in the Obama-era memos is similar to Pekoske’s.
Monitoring the system from the outside is difficult because, unlike the criminal and civil court systems, immigration arrest and court records are not public, and ICE and the border patrol have labor unions that endorsed Trump.
The acting secretary said he will conduct a “periodic review” of enforcement actions to ensure they are followed.
The memo is in addition to a slew of new executive orders and proclamations that Biden issued Wednesday on issues such as immigration, the border wall and climate change.
DHS also suspended the Migrant Protection Protocols on Wednesday, ordering that no new migrants are to be added to the program, which requires Mexico to host asylum seekers as they await their hearings in the United States. But covid-related travel restrictions remain in place, so asylum seekers are unable to immediately enter the United States, officials said Wednesday.
“All current MPP participants should remain where they are, pending further official information from U.S. government officials,” DHS said in a statement.
But the Pekoske memo signaled that the new administration is focused on expanding asylum processing at the southwest border, which has been paralyzed during the pandemic.
In the memo, Pekoske signaled that the department intends to “surge resources to the border” to secure the boundary with Mexico and to “rebuild fair and effective asylum procedures that respect human rights and due process.”
DHS intends to “fairly and efficiently” process asylum claims while adhering to health protocols to prevent the spread of covid-19, the memo said.
Biden is expected to announce additional immigration actions on Jan. 29.