How did DHS enforcement priorities change under the Biden administration in 2021–2024?
Executive summary
The Biden administration shifted DHS enforcement from broad, categorical removal toward narrower, threat-focused priorities and greater use of prosecutorial discretion, formalized in January–September 2021 memoranda and guidance [1] [2] [3]. That policy change produced concrete actions—a 100‑day pause on removals, termination of the Migrant Protection Protocols (MPP), and new individualized enforcement criteria—while implementation proved uneven and politically contested [1] [4] [5] [6].
1. A doctrinal pivot: from sweeping enforcement to targeted priorities
On Day One the administration revoked the prior broad Trump enforcement order and directed DHS to adopt interim enforcement priorities that limited enforcement to individuals who pose national‑security, border‑security, or public‑safety threats, a framework later refined into final guidelines issued by Secretary Mayorkas on September 30, 2021 [2] [3] [5]. Those formal documents instructed DHS components to concentrate resources on the highest threats and to apply prosecutorial discretion—moving away from rigid offense categories toward individualized assessments using aggravating and mitigating factors [5] [3].
2. Concrete operational moves: pauses, terminations, and renewed processes
DHS implemented an immediate, administratively significant 100‑day pause on removals of noncitizens with final orders (with exceptions) and ordered a comprehensive review of enforcement policies to reallocate detention and removal assets toward stated priorities [1]. The department also suspended and then terminated the Migrant Protection Protocols (MPP), beginning to process into the United States certain previously MPP‑enrolled individuals for ongoing proceedings [4]. ICE issued interim guidance requiring preapproval for enforcement actions against non‑priority individuals and expanded the public‑safety category to include specific aggravated felonies and certain gang conduct, signaling a mix of constraint and defined exceptions [3].
3. Implementation: measurable shifts but mixed operational realities
Observers reported that U.S. immigration arrests fell to multi‑year lows as the new priorities took hold, yet detention and enforcement outcomes were mixed: some detention populations rose, private prison use and contract patterns continued to complicate reform efforts, and DHS components applied new tools like case reviews and prosecutorial‑discretion procedures in varying degrees [7] [8] [3]. Independent accounts and studies cited by legal advocates indicate that a significant share of ICE actions between February and November 2021 still involved individuals outside the stated priority categories, underscoring implementation unevenness [6].
4. Legal fights and partisan criticism shaped and constrained policy
The administration’s priorities drew immediate legal challenges from states and political critics who argued the guidance unduly restricted enforcement; courts issued conflicting rulings and the matter reached the Supreme Court, which ultimately allowed the administration to reinstitute its priorities while litigation continued [6]. Congressional Republican investigations and reports framed the changes as “lax” enforcement and alleged mass releases and use of alternatives to detention—claims marshaled to pressure DHS and to support state‑led enforcement measures [9]. DHS and immigrant advocates, by contrast, defended the priorities as necessary for focusing finite resources on public‑safety and national‑security risks [3] [5].
5. Related departmental reforms and prosecutorial tools
Beyond enforcement‑priority memos, DHS under Secretary Mayorkas updated department‑wide policies such as use‑of‑force standards and stood up coordination bodies like the Law Enforcement Coordination Council to align training and accountability—moves presented as complementary to the goal of “effective and just” enforcement [10]. Legal and practitioner groups also pushed for clearer prosecutorial‑discretion processes and training to ensure consistent application across ICE field offices, a recommendation reflected in advocacy and AILA engagement with DHS [11].
Conclusion: targeted priorities, contested execution, and unresolved questions
From 2021–2024 DHS clearly reoriented enforcement toward a threat‑based, discretionary model—formalized in memos, a removal pause, and the termination of MPP—but the record shows uneven adherence across field offices, continued use of detention in some circuits, sustained political and legal pressure, and ongoing disputes over outcomes and accountability [1] [4] [8] [6]. Reporting and legal filings document the policy architecture and its frictions, but available sources do not permit a conclusive, nationwide audit of every ICE action, so assessments of ultimate impact necessarily rely on a mix of official guidance, advocacy analyses, and court findings [6] [12].