From the day of his inauguration, President Joe Biden’s approach to U.S. immigration law has been dramatically different than President Trump’s. Most notably, Biden significantly narrowed the scope of immigration enforcement for violations of immigration laws, directing officers to focus their resources mainly on high-priority individuals who could become a threat to public safety or national security.
A President—no matter who he or she is—cannot change immigration law directly. But built into the U.S. immigration law—called the Immigration and Nationality Act, or the INA—are provisions that grant the President and his or her executive agencies a degree of discretion in carrying out the law. That is, the law itself leaves it up to the President to decide whether or not to arrest, prosecute, or otherwise enforce penalties for violations of the immigration law.
Executive Discretion in Action
The exercise of discretion accounts for much of the difference between the Trump Administration’s policies and those of the Biden Administration. Who will be the target of ICE arrests, who should be detained while waiting for a hearing in the immigration court, who may be granted bond if they are detained, who is likely to be granted asylum—all of these decisions are guided by the Executive Branch through the Attorney General and the Department of Justice.
Currently, ICE officers have been instructed to exercise enforcement discretion, focusing their attention and resources on three groups of immigrants:
(1) those who pose a threat to national security;
(2) those who pose a threat to public safety because of past criminal convictions;
and (3) those who have crossed or attempted to cross U.S. borders without legal permission on or after Nov. 1, 2020.
If an immigrant does not fall into any of these categories, even if they are present in the country without permission, they are no longer a priority for arrest, detention, or prosecution.
Similarly, in the Immigration Courts, DHS attorneys have been instructed to exercise prosecutorial discretion regarding immigrants who do not fall into the three priority categories. Because of this shift in priorities, the government’s lawyers may be more inclined to agree to requests for continuances, motions for bond and reopening cases, and even dismissing removal cases—especially if the noncitizen can demonstrate positive factors such as strong ties to the U.S., military service, work or education in the U.S., or compelling humanitarian needs.
How an Experienced Immigration Lawyer Can Help
If you or your loved ones are living in the U.S. without legal status or are facing a removal hearing, the years of the Trump administration were probably particularly stressful for you—and the change to the Biden administration has been a rollercoaster of hope and confusion, with so many new policy announcements coming from the White House over the past year.
An experienced immigration lawyer can help you navigate these changes and fight for the immigration protections and benefits that you are eligible for. Working with a lawyer who knows this shifting territory will help you better understand whether a request for prosecutorial discretion is in your best interest at this time.
While every person’s situation is different, and we cannot guarantee any specific outcome for your case, the team at Lupton Law is ready to help you work toward the best results for you and your family. Contact us today for a free consultation with Seth, and find out whether the new administration’s new priorities could affect your case.