Trump vs. Biden on Immigration Enforcement Generally

One wants to expand it, the other wants to severely restrict it

By Andrew R. Arthur on October 12, 2020
  • The number of aliens removed from the interior of the United States in the past year under the Trump administration has not been significantly higher than the number of aliens who were removed in the last year of the Obama-Biden administration, when interior removals were at their lowest.
  • The number of criminal aliens removed is, by percentage, almost identical. And the number of aliens removed in FY 2019 trails — by a significant margin — the number of aliens removed in the early years of the prior administration.
  • Nonetheless, Joe Biden and a number of leading Democrats have been highly critical of immigration enforcement under the Trump administration.
  • Consequently, Trump and Biden have very different visions for how the immigration laws will be enforced over the next four years.
  • If re-elected, Trump wants to build on his administration's efforts to increase the number of removable aliens who are actually removed from the United States, and to limit the number of aliens who attempt to enter illegally in the future.
  • Biden, on the other hand, wants to remove aliens from the interior only if they have committed felonies in the United States — and not remove aliens whose only felonies are DUIs.
  • In a future post, I will discuss the former vice president's plan for border enforcement and contrast it with Trump's, but suffice it to say that he wants to end most (if not all) of the administrative initiatives that the president has utilized to stem the flow of migrants entering illegally.

With the election looming, it is time to compare and contrast the immigration-enforcement polices of President Trump and former Vice President Biden. Suffice it to say that the current occupant of the White House and the former resident of Number One Observatory Circle have very different agendas. The ability of each to effectuate those visions will have a significant impact on the United States for decades to come.

The president has primarily focused on his reforms of legal immigration on the 2020 campaign trail, not immigration enforcement, so I will largely look back at his body of work over the past four years. Simply put, he has focused on expanding enforcement, although the efforts of ICE (in particular) have been somewhat lacking.

The former vice president, on the other hand, has proposed a major overhaul of immigration enforcement in his "Plan for Securing our Values as a Nation of Immigrants", as well in the "Biden-Sanders Unity Task Force Recommendations", and in public statements the candidate has made both before and since. Most starkly, he wants to limit removals to aliens who have committed felonies in the United States, in part by threatening to fire ICE agents who arrest or deport any other alien.

It is not entirely clear why Biden has not merged the Unity proposals into his campaign website, but many of the proposals in the 110-page Unity document are sweeping and quite detailed, going far beyond the proposals on the website itself.

There is a lot to digest, so I will be dividing immigration enforcement up into separate subject areas, many of which overlap. In this post, I will examine how, and to what degree, each would enable the two key immigration-enforcement agencies, ICE and CBP, to enforce the immigration laws of the United States generally.

Statutory Authorities to Enforce the Immigration Laws

The Immigration and Nationality Act (INA) is fairly straightforward when it comes to immigration enforcement. Section 236(a) of the INA provides for the arrest of removable aliens by warrant issued by the attorney general or secretary of DHS. Through regulation, the authority to issue such warrants has been delegated to inferior officers.

Section 287(a) if the INA, however, allows ICE and CBP officers and agents to arrest an alien in the United States without a warrant if they have "reason to believe" that the alien is removable, and is likely to escape before a warrant can be obtained.

Congress has been explicit in designating which aliens should be removed. For example, section 212(a) of the INA contains a list of aliens who are inadmissible to the United States. That section applies not simply to arriving aliens seeking admission, but also to aliens who have entered illegally, pursuant to section 235 of the INA.

Similarly, in section 237(a) of the INA, Congress has mandated the removal of six different categories of aliens who have been admitted to the United States (as immigrants and nonimmigrants), most notably aliens convicted of specified crimes, terrorists, and those who pose a danger to the national security of the United States.

Implementation of Immigration Enforcement

What is clear in statute, however, has been anything but in practice. For example, in November 2014, then-DHS Secretary Jeh Johnson issued a memorandum "prioritizing" the arrest and removal of otherwise removable aliens from the United States.

In practice, this meant that certain aliens who were subject to removal were essentially safe from being removed. In fact, even before that memorandum was issued, former acting Director of ICE John Sandweg, stated: "If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero — it's just highly unlikely to happen."

To be fair to Sandweg and Johnson, these pronouncements were only partially premised on agency policy. To some degree, they also reflected the fact that while Congress had placed a significant burden on ICE and CBP to arrest and remove aliens from the United States, various Congresses (led by both parties) had failed to adequately fund those activities. Stated plainly, Congress has talked tough when it comes to immigration enforcement, but has failed to put your tax money where its collective mouth is.

This has been especially true of those senators and members of Congress who actively oppose enforcement of the laws they themselves (or their predecessors) had written. By limiting funding, they have been able to limit immigration enforcement. Where there is a will, though, there is a way for the executive to make the most of what the legislative branch has given.

That said, however, the last administration attempted to do less with more. In 2015, the Obama-Biden team attempted to "reprogram" (that is, move) $110 million from ICE to other DHS agencies. This was not a simple matter of priorities. As the Washington Post reported in July 2015:

The Obama administration has begun a profound shift in its enforcement of the nation's immigration laws, aiming to hasten the integration of long-term illegal immigrants into society rather than targeting them for deportation, according to documents and federal officials.

After taking office, President Trump attempted to reverse these policies. Those efforts, however, have been stymied by a limitation on funding by Congress, adverse court decisions, and a decrease in cooperation from states and localities in identifying removable aliens and turning them over to ICE under so-called "sanctuary policies".

Immigration enforcement in the not-so-distant past (including the Obama administration early on) was more vigorous than it has been recently. For example, research from the Migration Policy Institute shows that there were more than 12 million deportations under the Clinton administration (both "removals" from the interior and "returns" at the border), and more than 10 million under the George W. Bush administration. (Many aliens were deported more than once.)

Deportations under Obama were just more than half of what they were under his predecessor, with the caveat that the Obama administration's numbers were actually boosted by a redefinition of what constituted a "removal". Aliens (primarily from Mexico) who were commonly "returned" under prior administrations were now formally "removed", making the numbers look higher.

This is best demonstrated by historical data from the Transactional Records Access Clearinghouse (TRAC) on removals from the interior — that is, aliens who were living in this country, as opposed to those arrested by CBP at the border and handed over to ICE for removal. Between October 2002 and January 2016, according to TRAC, monthly interior removals peaked in October 2008 (at 22,708) and cratered in February 2015 (5,714). I will discuss the Trump administration's less than stellar efforts in this regard, below.

Trump's Position

The president has also fully endorsed — and expanded — the immigration efforts of ICE and CBP. In fact, he named a key ally, acting DHS Deputy Director Ken Cuccinelli, as the point man in the department on immigration-enforcement issues. Cuccinelli has used his position to laud ICE arrests of illegal immigrants:

Cuccinelli has also come out in support of CBP, and in particular the Border Patrol, in carrying out its mission of stopping alien criminals and drugs from entering the United States:

In a public conversation with Center for Immigration Studies Director Mark Krikorian in September 2019 when he was serving as the acting Director of USCIS, Cuccinelli also defended the Border Patrol's handling of overcrowding at its facilities during the height of the 2019 border crisis, explaining: "The Border Patrol works with what they have. Well, who gives them what they have? Congress."

Under a second Trump administration, expect that the president (directly and through surrogates like Cuccinelli) would continue to support the immigration-enforcement efforts of ICE and CBP, and to seek additional funding for each, and in particular for expanded detention.

Biden's Position

Biden does not propose abolishing either agency (as others have done), but both his campaign website and the "Unity" document (as well as his personal statements) make clear that he opposes vigorous enforcement of the immigration laws, especially as those laws have been enforced under the Trump administration.

This is odd, however, because the president's rhetoric aside, the Trump administration's enforcement efforts have not been that different from those carried out in the Obama-Biden administration.

For example, in FY 2019, the Enforcement and Removal Operations (ERO) branch of ICE arrested approximately 143,000 aliens and removed 267,258. While seemingly a large number, it is important to note that only 32 percent of those aliens removed (85,958, or roughly 7,163 per month) were originally arrested by ICE in the interior. Of those aliens, 91 percent had either a criminal conviction or pending charges. The remainder of the aliens removed had been arrested by CBP at the border.

By contrast, in FY 2011 (the third fiscal year of the Obama-Biden administration), ICE removed 396,906 aliens, of whom only 45,938 (11.5 percent) were border removals. Of the interior removals, 216,698 had criminal convictions while 134,270 (38 percent) were non-criminal immigration violators.

Interior enforcement, in particular, did tail off during the last years of that administration (as the TRAC data referenced above shows), and by FY 2016, only 65,322 aliens were removed by ICE from the interior. That said, of those, 92 percent had criminal convictions, roughly the same number of criminals as removed in FY 2019 (although the FY 2019 number also includes aliens simply facing criminal charges).

Further, the total number of aliens removed by ICE in FY 2019 was only 31 percent higher than in FY 2016 (the last full year of the Obama-Biden administration), and FY 2019 interior removals were actually less than a quarter of what they were in FY 2011 (under that administration).

Nonetheless, Biden wants to significantly restrict the number of removable aliens who are actually removed to a degree that would far exceed even the restrictions in the November 2014 Johnson memorandum, and the limited number of removals during the last year of the Obama-Biden administration.

Specifically, the former vice president vowed in a March 2020 debate not to deport any aliens within his first 100 days in office, and then only deport aliens who had committed unspecified felonies in the United States thereafter (the latter a promise that he had made before somewhat more elliptically).

Previously, in January, Biden stated that for purposes of this policy, drunk driving would not be considered a felony (even though certain DUI convictions are designated as such). It should be noted that, In FY 2019, ICE deported 74,523 aliens charged with or convicted for DUI.

Thus, Trump has made clear that he wants to continue and expand his administration's immigration-enforcement efforts if he is re-elected. Biden, on the other hand, wants to significantly limit enforcement, even more than his former boss, then-President Obama, had attempted to do.

The Appointment of Permanent Leadership and the Firing of Line Employees

On his campaign website, Biden explains he will: "Ensure [ICE] and [CBP] personnel abide by professional standards and are held accountable for inhumane treatment." How?

By increasing training and demanding transparency and oversight of those agencies through the appointment of "Senate-confirmed professionals". These are actually two points, the first of which (transparency and oversight) I will discuss below. The second (appointment of Senate-confirmed officials) is definitely a point on which the two candidates vehemently disagree — although frankly, it is not one that makes much difference.

As my colleague Mark Krikorian has explained: "Trump's penchant for 'Apprentice'-style management has created a situation where the top personnel in charge of immigration at the Department of Homeland Security, including the secretary himself, are all 'acting' managers, not having been confirmed by the Senate." Trump likely will continue to hire agency heads and secretaries on an acting basis, and fire those who fail to perform.

That said, even Senate-confirmed secretaries and agency heads serve at the discretion of the president (meaning they can be fired by the president at any time, too), while Congress can only remove cabinet secretaries through impeachment. Note that it is not clear how far down the ladder that power runs, but it is doubtful impeachment can be used by Congress to remove agency heads, too.

Congress can always withhold confirmation of course, but any Biden nominee in that situation would likely serve in an acting capacity about as long as Trump has kept his subordinates around.

As the foregoing shows, however, Congress controls the "power of the purse" (which Democrats in the House have used to limit the power of ICE and CBP already) and it can effectively force incumbents out by cutting their funding. But it could do that whether the incumbent is confirmed or merely acting.

In a similar vein, as noted above, Biden has stated that he plans to remove only those aliens who have committed felonies in the United States (not counting DUI), and no other removable aliens. To enforce this mandate, Biden harshly has vowed to fire ICE agents who arrest or deport any aliens who do not fall within these strict parameters.

Specifically, he has stated: "You change the culture by saying you are going to get fired. You are fired if, in fact, you do that. You only arrest for the purpose of dealing with a felony that's committed, and I don't count drunk driving as a felony."

To reiterate, Trump has already replaced secretaries and agency-level directors who have not carried out his immigration policies as he sees fit. But he has not sacked line officers, and probably couldn't, thanks to civil-service protections. Biden likely cannot do so, either, but the threat is probably sufficient to convince ICE agents and officers to limit their enforcement activities to the extremely limited class of aliens whom he believes should be removed.

Affecting Immigration Enforcement Through Oversight

The Biden proposals do not end at simply appointing permanent heads of DHS, ICE, and CBP and threatening to fire ICE agents, however — nor are they purely prospective.

Both candidates propose to use the same tool — "oversight" — in achieving their goals in the interior and at the border. Chief Justice Marshall famously stated that "the power to tax involves the power to destroy". A similar logic applies on a very personal level when it comes to utilizing the power of the executive to "oversee" the actions of its inferior officers (and their subordinates) to get its way.

Again, Trump has not hesitated to use his power to appoint "acting" agency and department heads, whom he uses to oversee the progress of the immigration agencies in implementing his policies for removing aliens from the United States, and doing so more quickly. But that is about as far as his oversight of immigration enforcement has gone, or is likely to go in the future.

The Biden-Sanders "Unity" paper, on the other hand, calls for rather robust oversight of ICE and CBP. Much of that oversight is duplicative of current efforts, but as a whole will likely have a chilling effect on immigration enforcement.

In particular, that paper promises that the Biden administration will implement proposals contained in the Homeland Security Improvement Act (HSIA, which was passed in the House in July 2019, but has stalled in the Senate) to impose greater oversight of ICE and CBP. Those proposals, in diametric contrast to Trump's initiatives, will almost definitely slow the removal of even the limited number of aliens Biden believes should be removed from this country.

HSIA calls for the establishment of an "Ombudsman for Immigration and Border Enforcement Related Concerns" that is independent of DHS. The ombudsman would respond to complaints about ICE, CBP, their contractors, and any "cooperating entity" (logically local law-enforcement agencies). Those complaints would be made publicly available, and the ombudsman would report annually to Congress detailing those complaints and proposing changes.

This is similar to the current role of the USCIS ombudsman, a position that was created by the Homeland Security Act of 2002 (HSA). Having been involved in the drafting of that bill, I note that the omission of a similar officer for immigration enforcement was deliberate.

Simply put, the HSA and laws then and now in place provide any number of avenues for aliens to file complaints about abuse and mistreatment. Among those avenues are Congress itself, the DHS Office of Inspector General ("OIG", an independent entity within DHS), DOJ's Civil Rights Division, and the Office of Civil Rights and Civil Liberties (CRCL) — which was included in section 705 of the HSA. Not to mention immigrant advocates and the media, which have shown themselves more than willing to call out the Trump administration on purported ICE and CBP abuses.

Among the duties of CRCL (in particular) is the investigation of "civil rights and civil liberties complaints filed by the public regarding Department policies or activities, or actions taken by Department personnel" — as the proposed ombudsman would do. And, like the proposed ombudsman, CRCL submits annual reports (as well as semiannual reports) to Congress detailing the complaints it has received, the resolution of those complaints, and proposed changes. Its onsite investigation memos are available on its website. Complaints may be filed with CRCL by telephone or over the internet.

CRCL also provides handouts advising those potentially affected of its services, and engages in significant community engagement. Respectfully, it is unclear how an ombudsman that would duplicate the efforts of CRCL would improve the enforcement of aliens' civil rights and liberties, or do anything more than further slow immigration enforcement.

Under HSIA, the ombudsman would also appoint border community liaisons for the northern and southern borders, a proposal that the "Unity" paper would extend to each of the 20 Border Patrol Sectors.

Among other duties set forth in the HSIA, those liaisons (who would not be required to have any law-enforcement or immigration experience whatsoever) would "consult with border communities on the development of policies, directives, and programs of" CBP and ICE, and present recommendations to "increase cooperation" between those agencies and border communities.

The HSIA and "Unity" paper also call for the ombudsman to establish a "Border Oversight Panel". Under the HSIA, that panel would be composed of 30 members with "expertise in immigration, local crime indices, civil and human rights, community relations, cross-border trade and commerce, [and unspecified] quality of life indicators", as well as in other areas.

Having performed oversight of immigration enforcement for Congress for more than seven years, I am a strong proponent of accountability.

That said, however, what both the HSIA and the "Unity" paper propose is duplicative of oversight that is already occurring, and at the same time encroaches on the ability of CBP and ICE agents and officers to do their jobs. If those proposals were enacted, officers and agents would face the threat of regularly being pulled away from their assigned duties to respond to complaints — regardless of substance or basis. That threat would have a "chilling effect" on their performance of their duties.

That could prove problematic, and not simply from an efficiency standpoint.

There may be instances in which we would want law-enforcement to err on the side of caution (that is, walk away from an encounter), but the border is not a place for such non-enforcement. Border Patrol doesn't just stop migrants from entry; it also prevents smugglers, criminals, and terrorists (as well as drugs and other contraband) from entering the United States. Agents don't know who's who until they stop them.

And Border Patrol agents (in particular) carry out their duties in the most perilous of circumstances. When encountering a group of individuals along the border, agents have no idea whether those individuals are migrants, armed smugglers, or worse. Simply put, Border Patrol issues its employees body armor for a reason. In this instance, reluctance to act could be dangerous for the agent, or worse.

There are also federalism concerns as relates to the investigation of local law-enforcement agencies, as the HSIA and "Unity" paper propose. Civil rights abuses are plainly within the jurisdiction of the federal government, but these proposals would allow the ombudsman to micromanage actions of agencies that fall purely within the discretion of state and local governments.

The "Unity" paper also calls for an end to "systemic racism in our country that extends to our immigration system, including the policies at our borders and ports of entry, detention centers and within immigration law enforcement agencies, policies and operations."

Racism has no place in law enforcement — period — but in this context the undefined term "systemic racism" is vague, and as a practical matter begs the question of whether such racism exists in immigration enforcement to begin with. Individual acts of racism are already actionable, but again, this proposal — if put into effect — is likely to have a chilling effect on what is legitimate law enforcement.

As noted, Biden's proposals are not purely prospective. The "Unity" document proposes having CRCL "undertake a review of the Trump Administration's immigration policies and provide recommendations for [unspecified] redress." Every new administration reviews the policies of the previous one, but this proposal seems to call for something much more. And the only "redress" that would be available to rectify the removal of an alien would be return of that alien to the United States.

That is unexceptional, assuming that the alien returned was not removable in the first place. If what Biden is proposing, however, is the return of aliens deported under the Trump administration who were otherwise removable, but who would not have been removed under Biden's policies (that is, any alien who has not committed a felony in the United States), this proposal has echoes of the Democratic-sponsored "New Way Forward Act", which I analyzed in detail in a February 2020 Backgrounder.

That bill would (among other things) require the return of removed criminal aliens to the United States at taxpayer expense. The "Unity" document does not reference the New Way Forward Act, but I would note that many of the cosponsors of that bill (including Rep. Pramila Jayapal (D-Wash.), Rep. Karen Bass (D-Calif.), and Rep. Veronica Escobar (D-Texas)) also assisted in the preparation of the "Unity" document. Escobar, in particular, is listed as an author of the immigration portions of the Biden-Sanders "Unity Task Force Recommendations".

That document would also direct OIG to investigate (among other actions) "detention determinations" as well as "detention conditions and practices, including whether there are policies that discriminate against black and brown immigrants and other instances of racial, ethnic, religious, and LGBTQ+ bias." That investigation would, logically, be (in whole or in part) retrospective, and examine detention under the Trump administration.

It is not clear what the OIG would be investigating as it relates to "detention determinations", which are generally premised on just two factors — flight risk and danger to the community. But discrimination on the basis of inalienable factors such as the ones listed are already unlawful (and could be challenged directly through habeas). And OIG would logically have already investigated such abuses had they occurred and complaints about them had already been raised (which, given the vigorous advocacy of the immigrant advocates and the bar, would almost definitely have happened).

Finally, the "Unity" document calls for reallocation of an unspecified amount of existing ICE and CBP resources for unspecified "training". As there is already funding for training, that reallocation would have to come from funding for enforcement — which, as noted, is strained already.

Summary

The number of aliens removed from the interior of the United States in the past year under the Trump administration has not been significantly higher than the number of aliens who were removed in the last year of the Obama-Biden administration, when interior removals were at their lowest. The number of criminal aliens removed is, by percentage, almost identical. And the number of aliens removed in FY 2019 trails — by a significant margin — the number of aliens removed in the early years of the prior administration.

Nonetheless, Joe Biden and a number of leading Democrats have been highly critical of immigration enforcement under the Trump administration.

Consequently, Trump and Biden each have a very different vision for how the immigration laws will be enforced in the next four years.

Trump wants to build on his administration's efforts to increase the number of removable aliens who are actually removed from the United States, and to limit the number of aliens who attempt to enter illegally in the future.

Biden, on the other hand, wants to only remove aliens from the interior if they have committed felonies in the United States — and not remove aliens whose only felonies are DUI. In a future post, I will discuss the former vice president's plan for border enforcement and contrast it with Trump's. Suffice it to say that he wants to end most (if not all) of the administrative initiatives that the president has utilized to stem the flow of migrants entering illegally.