Monday, January 11, 2021
Professor Cesar Garcia Hernandez (crimmigration.com and author of Migrating to Prison) shares his thoughts about the aftermath of the Trump presidency in the politics of migration and its policies toward migrants and the extent to which policies will shift course under the new administration on the Border Criminologies as a guest blog. In addition to Biden's promised rescission of the Muslim travel ban and and restoration of DACA, Garcia Hernandez notes
[The] Biden administration can use the considerable legal authority vested in the president as head of the federal government’s Executive Branch. The administration could, for example, revisit the Trump administration’s enthusiastic reliance on local law enforcement agencies to identify people who can be imprisoned and potentially removed from the United States. Relying on section 287(g) of the Immigration and Nationality Act, which authorizes formal partnerships between federal immigration officials and local law enforcement agencies, the Immigration and Customs Enforcement agency currently has 150 agreements with local law enforcement agencies allowing local sheriffs’ deputies and prison officials to flag potentially removable people for ICE. These agreements are structured as memoranda of agreement that impose obligations on ICE and the local agency. However, nothing in these agreements or the authorizing statute bars ICE from cancelling an existing 287(g) agreement. Likewise, there is no requirement that ICE enter into additional 287(g) agreements. Thus, even without Congress acting to repeal § 287(g), the Biden administration could effectively render it meaningless through a simple directive from the new Secretary of Homeland Security or director of ICE.
He also notes that President Biden has the power to restructure enforcement priorities, remaking a 2017 enforcement memo that vastly expanded interior enforcement as part of its "zero tolerance" policy and another memo prioritizing prosecution of immigration offenses.