As I recently explained, the Supreme Court is set to issue an opinion that will determine the extent to which DHS Secretary Alejandro Mayorkas may restrict ICE officers’ ability to investigate, arrest, detain, prosecute, and deport removable aliens (collectively known as “taking enforcement action”). One crucial paragraph in a memo that accompanied and implemented those restrictions explains the reasons for all the president’s immigration and border policies — and why his administration refuses to secure the border. In short, the administration thinks the law is unfair. That’s dangerous, and wrong.
Texas v. U.S. The case is Texas v. U.S., and at specific issue are restrictions Mayorkas has placed on ICE officers in taking enforcement action against certain criminal aliens notwithstanding two statutory requirements that mandate such aliens be detained.
One of those requirements is section 236(c) of the Immigration and Nationality Act (INA). It directs ICE officers to detain and hold any alien who is released from criminal custody if the alien has entered illegally and is removable on any of the criminal grounds of inadmissibility, or if the alien entered legally and is removable on all but one of the criminal deportation grounds.
The second is section 241(a) of the INA, which requires ICE to remove all aliens within 90 days after their removal orders have become final, and to detain them pending removal. For criminal aliens, release under that provision is even more restrictive: “Under no circumstance during the removal period shall [DHS] release an alien who has been found” inadmissible or deportable on criminal grounds.
Notwithstanding those criminal-alien detention mandates, Mayorkas issued guidance on September 30, 2021 (the “Mayorkas memo”), directing ICE officers to consider certain “aggravating” and “mitigating” factors before taking enforcement action, with limited exceptions.
The aggravating factors largely relate to the alien’s specific criminal offenses and prior criminal history, while the mitigating factors are more personal, having to do with the alien’s age, health, eligibility for relief from removal, and — interestingly — whether any of the alien’s family members were in the military or worked for the government.
Not surprisingly, the INA is uninterested in whether, say, an alien bank robber or kidnapper has a high BMI, receives Social Security, and has a kid working at the DMV. So why is Mayorkas demanding that ICE officers consider such factors?
The Mayorkas memo is quick to explain that the “foundational principle” for such considerations is “prosecutorial discretion”.
It is well established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders. The exercise of prosecutorial discretion in the immigration arena is a deep-rooted tradition.
...
In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways.
Respectfully, if my pastor had several spousal abuse convictions, I would find a new church, and I know any number of individuals who “do back-breaking farm work to help deliver food to our table” but are too tired at the end of the day to traffic drugs as a side job.
In any event, likely the most publicized lines in that memo are in the “prosecutorial discretion” section, as well:
The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country's well-being require it.
“The Considerations Memo”. It requires exegesis to explain why “justice and our country’s well-being require” ICE to leave serial drunk drivers alone, but fortunately DHS supplies it in a separate document issued the same day captioned “Significant Considerations in Developing Updated Guidelines for the Enforcement of Civil Immigration Law” (the “Considerations memo”).
The Considerations memo not only provides further explanations for the Mayorkas memo, but it also implements it, and thus is not merely some random document.
In addition to lauding Mayorkas’ long public service (“including 12 years as a federal prosecutor, three of which was as the United States Attorney for the Central District of California, and more than 7 years as Deputy Secretary of Homeland Security and Director of U.S. Citizenship and Immigration Services”), it also provides a history of similar attempts (most under Democratic presidents) to restrict enforcement.
The Considerations memo really gets revved up when discussing the hoary history of prosecutorial discretion, however, starting with the words of then-Attorney General (and later Supreme Court justice and Nuremberg war crimes prosecutor) Robert H. Jackson to a group of U.S. attorneys in 1940:
Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.
That raises the question, however, of what it means to be “just” in the context of an alien who entered illegally and has no right to be in the United States, let alone one preying on the community here. For that, the Considerations memo offers the following paragraph:
On his first day in office, President Biden affirmed that "advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government." In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration's stated commitment to "advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality." [Footnotes omitted.]
The first couple of times that I read that paragraph, I treated it as a non-sequitur or simple fluff, like the recap of Mayorkas’ career. But, really, it’s the most honest and important explanation of the Biden administration’s non-enforcement policies there is.
And those non-enforcement policies have taken many forms, from Biden’s release of more than 2.1 million illegal migrants at the Southwest border in derogation of statutory detention mandates, to his creation of extra-judicial “parole” programs to funnel foreign nationals without visas into the United States despite Congress’ recognized power over the subject (and the immigration limits it has imposed), to ICE’s tanking of nearly 92,000 removal cases involving facially removable aliens in immigration court in FY 2022.
Eliding the Distinctions Between Citizens and “Noncitizens”. The fundamental premise in that paragraph is that compliance with the INA as Congress has written it somehow impedes or hinders the goal of "advancing equity for all”, though it is not clear how, and the Considerations memo never quotes the “scholars and professors” to whom it references — likely with good reason.
As I have explained elsewhere, the INA divides people into two groups, citizens and nationals on the one hand who are all-but exempt from its provisions and aliens on the other, and then divides aliens into numerous subgroups based upon their statuses here.
From almost day one, however, the Biden administration has labored to elide those distinctions, erasing the statutory term “alien” from executive branch parlance in favor of the descriptor “noncitizen” (which is confusing, as some nationals aren’t citizens but aren’t the “noncitizens” the administration means), in what CNN has termed “a deliberate step intended to recognize America as ‘a nation of immigrants’”.
When I first read that explanation (from the day after the inauguration), it made no sense because of course we are a “nation of immigrants” but that doesn’t change the fact that aliens are aliens regardless of what the administration calls them — unless of course you are one of those unnamed “scholars and professors”.
Read through the prism of that crucial paragraph in the Considerations memo, however, the change does make sense, after a fashion. Even if you are a citizen — by birth or naturalization — you are still an immigrant because this is a “nation of immigrants”, and if you are a noncitizen “immigrant” (also a term defined by statute at section 101(a)(15) of the INA), you’re also at home in this nation of immigrants.
The problem, from the perspective of the Biden administration, is that the INA with its mandates and restrictions on aliens is inherently unfair, and therefore it requires the heavy “prosecutorial discretion” thumb of Biden’s grandees to even the balance. Read that key paragraph again — it’s exactly what it says.
The problem with such a conclusion from the perspective of anyone who’s not like-minded to those unnamed scholars and professors is it makes no sense in the context of the INA.
Alienage under the INA is not an immutable characteristic and naturalization isn’t that difficult, provided the alien in question complies with the rules, waits the requisite period, files the proper paperwork, pays the required fee, and appears at the ceremony.
Even if you are a lawfully admitted immigrant with no intention or inclination of naturalizing, the law leaves you alone so long as you don’t commit any major crimes or abandon the country. Try getting that deal in a lot of other countries.
In the distant past (that is, before I was born), there were admittedly obnoxious distinctions drawn in the INA, and more so in its predecessor statutes, but they’ve been eliminated in the intervening decades. The INA is colorblind, takes no note of religious distinctions, and is largely uninterested in your political philosophy (though terrorists and Nazi persecutors still need not apply).
“Manage Immigration So It Continues To Be in the National Interest”. What distinctions do exist are deliberate, because, as Barbara Jordan explained in 1994, “this country must set limits on who can enter and back up these limits with effective enforcement of our immigration law” to ensure that our nation can “manage immigration so it continues to be in the national interest”.
The administration’s ham-handed drive to “advance equity for all” in the INA, however, has already turned many Americans against the comparably lavish immigration benefits accorded foreign nationals under the INA, as I explained last August — likely because they increasingly don’t view immigration as continuing to be in the “national interest”.
Such sentiments have deepened in the interim. In a poll conducted by The Economist and YouGov between June 3 and 6 of 1,500 U.S. citizens, 36 percent of respondents stated that immigration has made the country “worse off”, compared to 31 percent who said it has made the country “better off” (18 percent say it “doesn’t make much difference”).
It’s crucial to our nation’s future that we reverse such trends, and the best way for the administration to do that is simple — just enforce the INA as written.
Many have speculated as to why the Biden administration has refused to enforce our immigration laws to the point of countermanding clear congressional mandates. Such speculation is pointless, however, because the administration has already explained its reasons in one critical paragraph — it thinks that the law is unfair, and the only way to make it fair is to ignore it. That’s dangerous, and wrong.