Immigration detention and enforcement in the United States under the first year of the Biden administration has been a mixture of improvements and setbacks.
The Trump administration implemented nearly 400 changes to interior enforcement with the goal of subjecting all undocumented immigrants to enforcement actions, and President Biden assumed office having made significant commitments to limit enforcement activities in an effort to reduce the hardship experienced by many immigrants and their families.
The President’s first year has brought a number of significant changes to immigration enforcement within the U.S., but with mixed results.
Though 2021 saw steps away from some of the Trump administration’s most egregious policies, the implementation of the Biden administration’s new priorities has varied across the country. The number of people in immigration detention increased significantly and disturbing trends also continued in the use of private prisons for immigration detention.
A Return to Enforcement Priorities
On January 20, 2021, Acting DHS secretary David Pekoske issued an interim memorandum that provided the Department of Homeland Security (DHS) with a framework of priorities for enforcement. This outlined who DHS should—and should not—prioritize arresting, detaining, issuing notices to appear to, and deporting.
This was followed up with a memo issued on February 18, 2021 that further carved out specifics for who was considered a priority for enforcement. The intention of these priorities is to focus enforcement efforts on a subset of individuals, presumably leaving others in relative safety from enforcement activity. These priorities included people who were considered national security threats, entered the country on or after November 1, 2020, or were convicted of aggravated felonies.
The enforcement priorities were challenged in federal court by Texas and Missouri, who argued that the priorities unfairly restricted ICE’s ability to pursue enforcement against other groups of people. While a district court judge initially agreed with the states, that decision has been stayed by the 5th circuit while the case winds its way through the courts.
On September 30, 2021 the administration issued another, more final, version of the enforcement priorities which was considered an improvement on the previous memo, though it notably no longer applied to release from detention. This memo moved away from the categorical approach of the previous memos and instead listed aggravating and mitigating factors in favor of or against enforcement.
These memos stood in contrast to the Trump administration’s approach of arresting and detaining everyone ICE encountered. But while the return to a set of priorities was a welcome move by many, it did not go far enough for many advocates.
Legal service providers and other advocates regularly noted that the memos still left discretion entirely in the hands of the field offices, and there were significant discrepancies between field offices in how they were applied. There was also no clear way to request review of a decision by the field office of a decision to designate someone as an enforcement priority. Finally, field offices rarely gave explanations for how they came to a determination, leaving representatives in the dark as to how it was being applied.
An Increase in Detention
Under the Trump administration, immigration detention reached an all-time high of over 50,000 people. The large reduction in detention numbers down to a historic low of under 15,000 people near the end of Trump’s term was due to changes at the border. The first major change was the implementation of MPP and then the use of Title 42 to drastically reduce numbers of individuals entering the United States during the COVID-19 pandemic.
Even with those border restrictions still in place, immigration detention has continued to grow under the Biden administration, with overall detention numbers increasing by 50% since Biden took office. Immigration detention continues to be extremely dangerous both to those detained and the surrounding communities, as detention centers act as super-spreader locations for COVID-19.
Meanwhile, detention in rural locations, such as in Louisiana and New Mexico, continued and even expanded. Detaining individuals in these areas has been criticized for the increased potential for due process and human rights abuses. For example, advocates from New Mexico and nationally focused on the Torrance County Detention Facility in Estancia, NM, where a group of Haitians were being detained with virtually no access to legal information, legal counsel, or even the ability to speak to officials in their native language. All of this at a detention facility that failed its inspection in July 2021 for, among other reasons, being dramatically understaffed.
Other detention centers, such as the Winn Correctional Center in Winnfield, LA, were investigated for their extremely poor conditions. At Winn, with government oversight agencies went so far as to recommend that ICE discontinue detaining people there, yet the detention continues.
The Use of Private Prisons
In the Biden administration’s first week in office, it banned the use of private prisons at the federal level. However, a loophole was left that private prison companies are increasingly taking advantage of: the ban didn’t apply to immigration detention centers. And ICE has openly admitted that it continues to search for additional facilities across the country to increase detention capacity.
This was met with some resistance by members of Congress but was nevertheless left as policy. Across the country, as the federal government is terminating or not renewing contracts with private prison companies, those prisons are being re-opened under contracts with DHS to detain immigrants. Immigration detention capacity is expanding, even though President Biden promised at the beginning of his term to address mass incarceration.
Advocates have been resisting the prison-to-detention-center trend, however, largely on the local level by asking state governments to ban the use of private prisons in their states. Results have been mixed, with a successful campaign most recently in Illinois.
The Biden administration has clearly made attempts to improve the country’s immigration detention and enforcement policies after a dismal record by his predecessor. Much more is left to be done.
FILED UNDER: Biden Administration, Immigration and Customs Enforcement