How do DHS enforcement priority memoranda issued in 2021–2022 compare to prior administrations in arrests, prosecutions, and removals?
Executive summary
The Biden-era DHS memoranda of 2021–2022 reoriented enforcement toward case-by-case prioritization and prosecutorial discretion, instituting a 100‑day pause on many removals and consolidating guidance that rescinded prior memoranda — moves that courts and critics have disputed — while earlier administrations (notably Obama and Trump) issued different priority frameworks that correlated with visibly different enforcement postures; however, public reporting and DHS releases in the provided record do not supply a clean, comparable time‑series of arrests, prosecutions, and removals to quantify net effects precisely [1] [2] [3] [4].
1. Policy shift: individualized priorities and a temporary removal pause
The September 30, 2021 Mayorkas memorandum and associated interim guidance directed DHS to prioritize national security, public safety, and border security and required individualized review of factors before arrest or removal, while instituting a 100‑day pause on certain removals early in 2021 and rescinding earlier memoranda [1] [2] [5].
2. Prosecutorial discretion formalized for immigration attorneys
In April 2022 the ICE Office of the Principal Legal Advisor issued guidance instructing OPLA attorneys to exercise prosecutorial discretion to resolve cases promptly and in the interest of justice, formalizing a litigation‑stage counterpart to DHS’s field priorities and signaling fewer mandatory prosecutions in lower‑priority cases [6] [7].
3. How this compares to Obama-era frameworks
The Obama administration’s Morton and Jeh Johnson memoranda created tiered priority categories and set enforcement focus on threats and recidivist offenders rather than blanket inaction; Biden’s guidance continued the practice of priorities and individualized discretion but consolidated DHS‑wide standards and emphasized humanitarian considerations and sensitive locations, reflecting continuity with—but not identity to—Obama‑era approaches [3] [7].
4. Contrast with the Trump administration’s posture
Under Trump, enforcement philosophy shifted toward broad, aggressive arrest and removal priorities with fewer institutional limits on whom to pursue; reporting assembled here notes that Biden’s memoranda rescinded some Trump policies and narrowed targets, which advocates expected to reduce arrests and removals among non‑priority populations even as DHS stressed it retained authority to act in specific cases [3] [1].
5. Legal and political pushback that changed implementation
Texas and Louisiana litigation led a federal court to vacate the Mayorkas memo in June 2022 in the Fifth Circuit context, and the government appealed with circuit splits emerging (the Sixth Circuit reached different conclusions), creating enforcement uncertainty and prompting congressional criticism accusing the administration of encouraging lax enforcement — an explicit political agenda from opponents seeking stricter removals [8] [5] [9].
6. Observable enforcement outcomes: limited public data in the record
DHS and ICE reporting referenced here provide descriptive context and FY2021 enforcement summaries (including caveats about Title 42 encounters) but the documents in the record do not present a simple before‑and‑after table of arrests, prosecutions, and removals attributable solely to the 2021–2022 memoranda; the Department’s enforcement actions report documents operational metrics for FY2021 but notes litigation and policy rescissions complicate attribution [4] [10].
7. Practical effects on arrests, prosecutions, and removals — qualitative assessment
Taken together, the memoranda institutionalized more selective arrests, encouraged prosecutorial discretion to limit or resolve cases short of full removal proceedings, and paused some removals temporarily, which advocates contend reduced enforcement against non‑priority groups while opponents argue it increased state burdens and immigration noncompliance; the exact net change in aggregate arrests, prosecutions, and removals relative to prior administrations cannot be precisely determined from the provided sources alone and remains entangled with litigation, administrative pauses, and other policy tools such as Title 42 and MPP changes [1] [2] [8] [4] [3].
8. What to watch next and who benefits from competing narratives
Courts continuing to adjudicate the vacatur, congressional inquiries, and DHS reporting will shape whether the guidance stands as a durable operational brake on low‑priority enforcement; meanwhile, advocates for immigrants present the memos as necessary humane reform while critics and some state actors frame them as causes of increased local costs and border pressures — each side has political incentives to emphasize selective metrics rather than offer a full population‑level accounting [8] [9] [11].