President Joe Biden’s Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.  Immigrants have helped strengthen America’s families, communities, businesses and workforce, and economy, infusing the United States with creativity, energy, and ingenuity.  The task of enforcing the immigration laws is complex and requires setting priorities to best serve the national interest.  The policy of my Administration is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.  We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities.  My Administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities.

Sec. 2.  Revocation.  Executive Order 13768 of January 25, 2017 (Enhancing Public Safety in the Interior of the United States), is hereby revoked.  The Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, and the heads of any other relevant executive departments and agencies (agencies) shall review any agency actions developed pursuant to Executive Order 13768 and take action, including issuing revised guidance, as appropriate and consistent with applicable law, that advances the policy set forth in section 1 of this order.

Sec. 3.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


January 20, 2021.


Summary of Executive Order “Enhancing Public Safety in the Interior of the United States”

On January 25, 2017, President Trump signed an executive order, “Enhancing Public Safety in the Interior of the United States,” which announced a massive expansion of interior immigration enforcement. The order defines enforcement priorities so broadly as to place all unauthorized individuals at risk of deportation, including families, long-time residents, and “Dreamers” (those who were brought to this country as children). The order also encourages states and localities to enforce federal immigration laws. This is a change from the Obama administration’s efforts to scale back such initiatives and adopt policies intended to discourage abusive or discriminatory practices by local law enforcement. Finally, the order revives the constitutionally suspect Secure Communities program (which was terminated in 2014), orders the Department of Homeland Security (DHS) to consider stripping federal funding from so-called “sanctuary cities,” and encourages additional criminal prosecutions for illegal entry into the United States. Overall, the Trump administration’s approach will have devastating consequences for immigrant communities and will undermine, rather than improve, public safety.

Prioritize All Undocumented Immigrants for Removal

The executive order prioritizes for deportation those noncitizens who:

  • have been convicted of any criminal offense;
  • have been charged with any criminal offense, where the charge has not been resolved;
  • have committed acts that constitute a chargeable criminal offense;
  • have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
  • have abused any program related to the receipt of public benefits;
  • are subject to a final order of removal but have not departed; or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The order also includes broad language identifying individuals who are subject to certain immigration law provisions related to crimes, terrorism, and fraud or misrepresentation.

The Obama administration acknowledged that with limited enforcement resources the government had to focus immigration enforcement on serious criminals and individuals who posed threats to national security or public safety. However, these new “priorities” are not ranked in order of importance, with criminal convictions listed first and national security risks listed last. Instead, the executive order makes every unauthorized immigrant a priority.

Unauthorized immigrants with no criminal history can fall under the third bullet because entering without inspection is a chargeable criminal offense (illegal entry or re-entry). Also, since the executive order separately states that unauthorized immigrants are a risk to public safety and national security, the final bullet becomes a catch-all category.

Increase the Use of State and Local Police to Enforce Immigration Law

The order directs the Secretary of Homeland Security to increase the number of “287g” agreements. Under the 287(g) program (named for the section of the Immigration and Nationality Act that authorizes it), DHS may deputize select state and local law-enforcement officers to perform the functions of federal immigration agents. Deputized officers may interview individuals to determine their immigration status; check their  documents against DHS databases; issue “detainers” (which instruct a state or local law enforcement agency to hold a suspected removable individual for up to 48 hours after the scheduled time of release so that ICE can assume custody); and issue a Notice to Appear (NTA), the official charging document that begins the removal process.

Issues with the 287(g) program are well-documented. A March 2010 report by the DHS Office of Inspector General concluded, among other findings, that ICE and its local law-enforcement partners had not complied with the terms of their 287(g) agreements; that the evaluation parameters for deputized officers contradicted the stated objectives of the program; and that the program was poorly supervised by ICE and in need of additional oversight. Under the Obama administration, the program was significantly reduced, and its use was limited to engaging with noncitizens in jails, as opposed to anywhere in public.

The 287(g) expansion proposed by the executive order would require additional funding from Congress to pay for the program training.