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Why reforming the U.S. approach to deportations could be Biden’s biggest immigration challenge

President Joe Biden signed a series of executive orders Tuesday aimed at undoing several Trump administration policies, with a focus on reuniting families separated at the border. But the orders did not address deportations, a recurring point of debate in Biden’s campaign and over the last several administrations, and advocates worry that a legal battle has already muddled an initial effort by Biden to pull back on some of Trump’s hardline enforcement policies.

On the day of Biden’s inauguration, the acting homeland security secretary issued a memorandum that ordered a 100-day moratorium on deportations, and rescinded a Trump-era policy that had directed federal authorities to prioritize the arrest and removal of a broad swath of immigrants living in the country without documentation, calling for more prosecutorial discretion in deciding these cases.

The hope was that the memo would protect immigrants from being deported for low-level criminal charges while Congress considered more comprehensive changes. White House press secretary Jen Psaki said Tuesday the administration would take the time to review immigration policies enacted under Trump in order to “put in place an immigration process so people can be treated humanely,” but gave no further details on deportations.

WATCH: How President Biden’s policy shifts are impacting immigrants

While Trump made targeting non-citizens and their families for removal a cornerstone of his immigration policy, “the deportation machine has a long, bipartisan history,” which has for decades relied on law enforcement targeting non-citizens for large-scale deportations, said Adam Goodman, a professor of Latin American and Latino Studies at University of Illinois at Chicago. Biden will face significant challenges no matter how sweeping or ambitious his plans for immigration reform, he said.

Biden’s immediate effort to reverse course on enforcement has not necessarily made immigrant communities safer, say advocates who represent clients facing deportation, because it has already been weakened by a court and federal authorities have not followed the directive.

A federal judge in Texas blocked the Biden administration last Tuesday from enforcing the ban on deportations for a period of 14 days, creating confusion about whether immigrants facing imminent removal from the country are actually protected under the Biden memo.

And although the memo set forth new enforcement priorities for Immigration and Customs Enforcement, and Customs and Border Protection — directing the agencies to focus primarily on detaining and deporting undocumented immigrants deemed a threat to national security or public safety, or who recently crossed the border illegally — it specified that the priorities would not take effect until Feb. 1, leaving a gap in directive between then and Inauguration Day. Some advocates say they believe this prompted a rush by ICE, in particular, to target immigrants for removal before the new guidance took effect.

Hundreds of immigrants have been removed from the country in recent days, according to the Associated Press, which reported that ICE deported 15 people to Jamaica last Thursday, and 269 people to Honduras and Guatemala last Friday. It was not clear how many were deported because they pose a threat to public safety or national security, the two priorities for deportation set forth in the new Biden memo.

Lawyers representing immigrants say they have received conflicting messages from federal authorities in the weeks since the acting DHS secretary signed the memo regarding deportations.

One such case was that of 27-year-old Javier Castillo Maradiaga, a Bronx resident whose protection under the Deferred Action for Childhood Arrivals program (DACA) expired in 2019 and was scheduled to be deported to Honduras from a detention center in Louisiana last week, according to his lawyer, despite continued pleas from his family, activists and lawmakers to let him stay in the country. Though Maradiaga, who was brought to the U.S. from Honduras at 7 years old, was not ultimately placed on a deportation flight, his case prompted several lawmakers including Reps. Alexandria Ocasio-Cortez, D-N.Y., and Ritchie Torres, D-N.Y., to send a letter calling on ICE to grant Maradiaga’s request for a stay of removal and reunite him with his family.

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“This case sort of illustrates the difficulty that advocates are having in this transitional period in between administrations,” said Cristina Velez, a senior staff attorney with the National Immigration Project working with the lawyers representing Maradiaga.

Maradiaga’s lawyers, who are with the advocacy group UNLocal, Inc., said he did not apply to renew his DACA status after Trump became president for fear he would be targeted by federal authorities. While DACA protections remain in place, the fate of the program has been uncertain for the past few years following Trump’s efforts to end it in 2017 (a move the Supreme Court ultimately blocked).

Maradiaga was arrested in the Bronx for jaywalking in December 2019, according to NPR, and was transferred to ICE detention shortly thereafter. Maradiaga’s charges have since been dismissed and sealed, according to UNLocal executive director Terry Lawson, but ICE became aware of a deportation order against Maradiaga from 2004, when he was 9 years old, before he received DACA protection.

“An immigration judge granted Castillo-Maradiaga a voluntary departure, Sept. 3, 2003. He was given until Jan. 1, 2004 to depart the U.S. and he failed to comply,” ICE said of the case in a written statement provided to the PBS NewsHour. The agency said that an immigration judge denied Maradiaga’s motion for a stay of removal last year, and that he remains in ICE custody.

Velez said Maradiaga should be protected from deportation under Biden’s recent memo. But he was flown back and forth from ICE detention in New York to a facility in Louisiana twice last week, which she said prompted efforts “into the 11th hour” to figure out if he would be on a deportation flight.

“These are the kinds of problems that result from any kind of categorical moratorium,” Velez said, positing that even if the 100-day moratorium had not been blocked by a judge, immigrants would still likely be subject to “potential errors or misapplication” of the order by ICE. “That’s sort of reflective of the culture that was certainly allowed to flourish under Trump at ICE, which was very aggressive in using its enforcement authority,” Velez said.

Maradiaga’s lawyer received word this week that he had been granted a 30 day stay of removal by ICE and would be transferred back to New York, according to Lawson. She said she hoped that ICE would honor the new priorities set forth in Biden’s memo and release Maradiaga from detention.

Biden faces a decades-long history of deportation

As Goodman argues in his book, “The Deportation Machine,” which looks at the history of deportation and its effect on immigrants’ lives, U.S. officials have collaborated for centuries to target and expel migrants, whether through laws such as the Chinese Exclusion Act in 1882 or government-sanctioned campaigns such as “Operation Wetback” in 1954, which resulted in the removal of hundreds of thousands Mexican nationals from the the U.S., the historian estimates.

During his campaign, voters questioned Biden about the high number of deportations that occurred during his time as vice president under Barack Obama, who was dubbed “deporter-in-chief” after the number of immigrants removed from the U.S. reached an initial peak during his first term.

But immigration experts say the current deportation pipeline didn’t simply start with Obama — it can be traced back to 1996, when Bill Clinton signed into law a bill that instituted sweeping changes to enforcement. Titled the Illegal Immigration Reform and Immigrant Responsibility Act, the bill made more immigrants eligible for deportation and narrowed their pathways to citizenship. Under the law, non-citizens charged with misdemeanors and felonies could be subject to removal by federal authorities.

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Deportations rose steadily in the years after the 1996 bill was signed and reached record highs while Obama was in office. He entered the White House shortly after the establishment of the Secure Communities program, which allowed the Department of Homeland Security to automatically identify immigrants in U.S. jails who were eligible for deportation using biometric data. At the same time, collaboration between local and federal law enforcement increased with the use of 287(g) agreements, which allowed ICE to train state and local officers to assist them in identifying, detaining and processing undocumented immigrants.

“You had this amplification of cooperation with the state and local law enforcement agencies, and that was something new,” said Randy Capps, an expert on immigration trends with the Migration Policy Institute, of the 287(g) agreements, which authorities started signing in large numbers around 2005. “It had never been done really on a large scale before.”

“Obama inherited all this infrastructure,” Capps continued, adding that his administration “did very little to slow it down” during his first term.

In Fiscal Year 2009, more than 390,00 immigrants were deported, according to a Department of Homeland Security report, the seventh consecutive record high at the time. The majority of those removed from the country had not been convicted of a crime; among those who did have a criminal charge on their record, the most common offenses were related to illegal drug activity, traffic offenses, or immigration-related violations. Deportations continued to rise through Fiscal Year 2014, although during this time the types of removals shifted. By 2013, 70 percent of deportations were carried out at the border by CBP, while the number of immigrants deported by ICE from the “interior” of the country — typically those who had been in the country for a longer time — dropped, according to a Migration Policy Institute report. Biden called the record number of non-citizen removals that occurred while he was vice president a “big mistake, and has vowed to do better.

While the Obama administration shifted its enforcement priorities to focus mainly on those who crossed the border recently or with violent criminal charges — effectively shielding nearly 90 percent of undocumented immigrants from deportation — the protections were rescinded by Trump, who promised to deport millions, including non-citizens who had no serious criminal record, as part of his crackdown on immigration.

The Trump administration did not ultimately deport more immigrants than Obama, in part because of local and state authorities. In response to Trump’s early actions in office, many jurisdictions terminated their agreements with ICE and pledged to protect their undocumented populations, Capps said. While arrests and deportations rose by around 40 percent during Trump’s first nine months in office, he “never got much above half of the peak [during Obama], and the reason why is they were unsuccessful in overturning the sanctuary policies.”

Naureen Shah, an attorney with the ACLU who has recently met with detained people from countries such as Cuba and Venezuela facing deportation, pointed out that some local authorities tightened their relationship with ICE during the Trump administration. States such as Florida and Texas are still honoring a number of agreements with the federal agency to track down undocumented immigrants in the criminal justice system. Texas Attorney General Ken Paxton was also behind the lawsuit to block the Biden administration’s 100-day pause on deportations.

During the coronavirus pandemic, ICE significantly pulled back on its operations due to health concerns, Capps said. In April 2020, arrests went down by about half from the previous month, he said. Overall the detained population, which generally averages around 45,000, had decreased to about 20,000 by the end of the year, according to ICE figures.

Goodman said this drop offers a glimpse of what a less punitive system could look like. “We’ve seen that this drop is possible. There are political decisions that government officials make as to whether or not to detain people. And the pandemic has shown us for very good reasons” that such a high number of immigrants do not need to be detained, he said.

Advocates ‘want action,’ not talk

Even though deportations went down while Trump was in office, advocates say the fear and confusion his administration has sown among these communities should not be discounted. ICE deported more migrant family members in 2020 than the last three fiscal years combined, suggesting that the types of people targeted by federal authorities have evolved with the Trump administration’s crackdown on asylum-seekers from Central American countries at the border.

“I’ve been to these detention sites and interviewed people there and they are begging for information about what’s going on for them,” Shah said, noting that these immigrants often don’t have access to a lawyer, nor the resources to secure one using the internet.

Advocates are hoping Biden will bring meaningful reform to ICE, but a last-minute agreement signed by former Trump Department of Homeland Security official Ken Cuccinelli and the union representing ICE, as reported by Buzzfeed News, could hamper his efforts. In a letter sent to Congressional committees and the department’s inspector general, a whistleblower alleged that these agreements “confer on the union the ability to indefinitely delay changes to immigration enforcement policies and practices as well.”

READ MORE: The challenges Biden will face on immigration reform

Advocates and experts who deal with cases of people in the crosshairs of the criminal justice and immigration systems say that Biden’s success will be contingent on whether federal agencies including ICE honor the changes put forth by the administration.

“Regardless of whether there’s a moratorium in place, or whether the new administration shifts its approach to removal in general, one of the concerns is whether these changes will be honored uniformly by ICE,” Velez said. “The Biden revised enforcement priorities are a welcome step in the right direction, but the memo continues to allow ICE to depart from those enforcement priorities. They’re not required to adhere to these enforcement priorities necessarily.”

In a statement to the PBS NewsHour, ICE said that it “continues to make custody determinations on a case by case basis, in accordance with U.S. law and Department of Homeland Security (DHS) policy,” adding that “during the course of routine operations, individuals can be released from custody based on the facts and circumstances of their cases.”

The president has said he would propose a bill to legalize the 11 million undocumented immigrants currently living in the U.S. For Goodman, this would be one of the best ways to slow down deportations for good.

“The best way to ‘abolish ICE,’” Goodman said, referring to calls by some members of the left to get rid of the federal agency, “would be to pass legislation that includes legalization of undocumented people currently in the country and also expands the legal channels through which future migrants can enter the country … The fewer people that come into contact with the deportation machine, the better.”

Polling indicates the Trump administration’s hardline policies on immigration did not fall in line with mainstream public opinion. Nearly 8 in 10 Americans say that immigration is good for the country, according to Gallup polling released in July 2020. The same poll found 34 percent of Americans would like to see immigration increase, the highest level of support for expanding it since 1965.

But a divided Congress could make it difficult to chart a viable path forward on significant immigration reform. Advocates said they expect a Republican backlash to Biden’s proposed immigration policies, and this could certainly extend to any efforts to pass bipartisan legislation on the issue at the federal level.

Goodman said he expects immigrant communities to be paying close attention to whether Biden will be able to move the needle on the issue: “People do not want to hear Biden talk. They want to see him act.”

Editor’s note: This article has been updated to reflect Goodman’s estimate of removal figures from “Operation Wetback,” the 1954 campaign to deport Mexican nationals from the U.S.

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