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Fact check: How has the Department of Homeland Security's deportation policy changed under Joe Biden's administration?
Executive Summary
The Department of Homeland Security under President Joe Biden moved from broad, high-volume removal operations toward a targeted enforcement model that prioritizes noncitizens who pose threats to national security, public safety, or border security and emphasizes prosecutorial discretion; this shift is reflected in formal DHS guidance issued in 2021 and updated enforcement guidance in 2023 [1] [2]. At the same time, enforcement metrics and border encounters rose in 2021, producing higher numbers of encounters, notices to appear, detentions, and returns and prompting both administrative rulemaking and litigation that complicate a simple characterization of "fewer deportations" [3] [4].
1. How Biden’s Enforcement Playbook Replaced Blanket Raids with Targeted Priorities — Read the Memo
DHS issued guidance in 2021 that explicitly shifted enforcement toward cases presenting threats to national security, public safety, or border security, instructing immigration officers to exercise prosecutorial discretion and weigh mitigating factors such as community ties and the nature of offenses [1]. That document framed enforcement as selective rather than wholesale, marking a departure from prior administrations’ broader arrest-and-remove emphases. Subsequent explanatory materials in 2023 reiterated these priorities and offered operational detail on how discretion should be applied, stressing protection of civil rights and liberties while preserving capacity to remove high-risk individuals [2]. These are administrative choices, not statutory repeals, and they direct how DHS allocates limited enforcement resources [1] [2].
2. Numbers Tell a More Complicated Story — Encounters and Removals Rose in 2021
Statistical reporting from DHS’s Office of Immigration Statistics shows that total CBP initial encounters, notices to appear, detentions, and returns increased between 2020 and 2021, driven by surges in border activity and pandemic-era factors; higher encounters produced more administrative actions even as the enforcement priority guidance sought to narrow removals to higher-risk cases [3]. This means that operational outcomes — arrests, detentions, and returns — are influenced by migratory flows and public health policies as much as by internal DHS priorities. Enforcement guidance can limit who agents focus on, but it cannot entirely insulate aggregate removal totals from spikes in arrivals or emergency public-health measures that affect returns [3].
3. Policy Changes Met Legal and Political Pushback — Rulemaking and Court Battles
The Biden administration’s immigration actions prompted administrative rules and litigation, notably litigation over a Section 212(f) executive action and subsequent interim and final rules that made certain border arrivals categorically ineligible for asylum when seven‑day average encounters exceed a threshold, a policy challenged in Las Americas Immigrant Advocacy Center v. DHS [4]. That litigation underscores how administrative policy can be reshaped through statutes, executive orders, and judicial review. Advocacy groups and legal associations also tracked enforcement and court developments, highlighting how court decisions and rulemaking created practical constraints and new enforcement pathways that intersect with DHS’s discretionary guidance [5] [4].
4. Congressional and CRS Attention — Administration Actions Not a Complete Blueprint
Congressional Research Service analysis catalogued White House actions on immigration but did not offer a singular, detailed statement of DHS deportation policy, reflecting the complex interplay between White House initiatives, agency guidance, and Congress’s jurisdiction [6]. The CRS’s role is descriptive and comparative, noting that the administration’s approach involved executive measures alongside rulemaking and that CRS materials often summarize actions without prescribing enforcement mechanics [6]. This highlights an often-missed reality: DHS enforcement is shaped by executive guidance, interagency coordination, and the broader legislative and judicial environment rather than by a single, simple policy switch [6] [2].
5. Comparisons with Prior Administrations Reveal Shifts and Continuities — Not an All‑or‑Nothing Change
Analyses that contrast Biden-era directives with earlier enforcement regimes underscore both clear philosophical shifts toward discretion and important continuities in operational practice, especially when border pressures spike [1] [3]. Reporting on the Trump-era expansion of removals and ICE activities provides useful counterpoints showing how priorities alter resource allocation and enforcement tactics, but DHS under Biden retained statutory authorities and the ability to remove noncitizens; guidance altered who was prioritized, not the underlying legal removal mechanisms [7] [1]. Thus, the change is administrative prioritization, subject to legal challenges and real-world pressures that can produce increases in removals despite different guidance [3] [4].
6. What’s Missing from the Public Record — Key Omissions and What to Watch Next
Public documents and analyses in the record emphasize guidance and statistics but leave gaps on week‑to‑week operational discretion, local ICE field practices, and how DHS balances asylum-rule changes like the 212(f) implementation against enforcement priorities [6] [4] [2]. Advocacy groups and legal practitioners continue to monitor how prosecutorial discretion is applied on the ground and how litigation over asylum eligibility and detention policies alters removals. Observers should watch updated DHS guidance, court rulings in ongoing litigation such as Las Americas, and future statistical releases to understand how administrative priorities translate into enforcement outcomes [4] [3].