Have recent policy changes under the Biden or Trump administrations altered civil vs. criminal immigration enforcement?
Executive summary
Recent policy changes under both the Biden and Trump administrations have materially shifted how federal authorities distinguish and prioritize civil immigration enforcement (administrative removals, detainers, and civil warrants) versus criminal immigration enforcement (criminal charges for unlawful entry, smuggling, or related offenses): the Biden administration narrowed civil-enforcement priorities and instructed ICE to focus on national-security and public-safety threats (while DOJ rescinded “zero tolerance” charging practices), whereas the Trump administrations expanded interior partnerships and aggressive criminal and civil enforcement tools, increasing state-local cooperation and detention capacity (Biden actions and priorities; Trump expansion) [1] [2] [3].
1. Biden’s recalibration: narrower civil enforcement, individualized criminal charging
From Day One, President Biden rescinded key Trump executive orders and directed DHS to review and limit the universe of people subject to civil immigration enforcement, instituting interim civil-enforcement guidelines and a temporary 100‑day pause on many removals while announcing longer-term priorities emphasizing threats to national security, border security, or public safety [1] [4]. Secretary Mayorkas’ September 2021 memo formalized “Guidelines for the Enforcement of Civil Immigration Law,” which instructed ICE to weigh aggravating and mitigating factors before interior arrests and detentions— a shift our sources link to fewer civil detainers lodged and fewer arrests of noncriminal migrants [1] [5] [6]. At the same time the Department of Justice formally rescinded the Trump-era “zero tolerance” prosecutorial directive, returning criminal charging decisions to individualized assessments rather than blanket criminal referrals for migrants at the border [2].
2. The Trump approach: expanded criminal tools, state partnerships, and detention
The Trump administrations emphasized broad civil enforcement and robust criminal prosecution as complementary levers: earlier Trump policy directed DHS to enforce “against all removable aliens” and to broaden interior enforcement, and authorities under Trump signed large numbers of 287(g) and state memoranda of understanding to enlist local law enforcement in immigration tasks [4] [1]. The Trump 2025–26 materials and reporting describe rapid expansion of ICE personnel, hundreds of state and local agreements, stepped-up interior arrests, higher detention averages, and policy moves designed to restore aggressive interior removals and criminal prosecutions, signaling an inverse posture to Biden’s restraints [3] [7].
3. Law, litigation and the practical friction between civil guidelines and statutory mandates
Policy shifts have repeatedly collided with statutes and courts. Biden’s early “100‑day pause” and other internal memoranda drew immediate litigation and injunctions in federal courts, and states sued over alleged statutory noncompliance; some cases blocked elements of the pause or raised standing issues that reached higher courts [1] [2] [5]. Critics in Congress and on oversight committees argued that Mayorkas’ guidelines improperly constrained ICE from fulfilling statutory detention and removal duties; proponents counter that the guidelines merely restored prosecutorial discretion and targeted limited resources to the “worst of the worst” [8] [5].
4. State and local policy is a decisive axis of change
State and municipal laws have reshaped the civil/criminal boundary by either insulating communities from civil immigration actions or by enabling federal access. Progressive jurisdictions have passed statutes and rules forbidding detention solely on immigration detainers and limiting information-sharing with federal civil enforcement (for example, Illinois SB 0667 and Washington HB 2567), thereby reducing local participation in civil enforcement even as federal priorities fluctuate [9]. Conversely, Trump-era federal pushes to obtain state databases and to expand local partnerships sought to pull back jurisdictional limits and bolster both civil and criminal enforcement capacity [9] [3].
5. How to read competing narratives and what remains uncertain
Reporting and advocacy draw starkly different conclusions: Republican oversight and conservative think tanks argue Biden’s civil-priority memos and DOJ discretion made it harder to arrest and remove criminal aliens [10] [11], while immigration-rights groups and some law-enforcement voices praise targeted civil enforcement and individualized criminal charging as lawful, efficient, and less disruptive [12] [13]. Public DHS and White House materials, state laws, statutory texts, litigation outcomes, and agency personnel changes all support the central fact that policy choices—both civil-priority memos and aggressive criminal enforcement measures—have changed how enforcement is carried out; however, quantifying net effects (on removals, criminal prosecutions, or public safety) depends on data slices and timeframes not fully contained in these sources [1] [3] [7].