As I recently reported, the White House has issued its (330-page) FY 2024 ICE budget justification. If you read down to page 90, the agency tells you how, in apparent compliance with vacated policies, its lawyers tanked almost 92,000 cases involving removable aliens that should have gone forward but didn’t — at a cost of untold millions.
How Biden Gutted Immigration Enforcement. Those nearly 92,000 tanked cases are just a small — but key — part of the Biden administration’s efforts to gut U.S. immigration enforcement.
In three separate memos — the first issued minutes after Biden was sworn in — the administration has constrained the ability of immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).
The last of those three memos, which superseded in part the first two, was issued by DHS Secretary Alejandro Mayorkas on September 30, 2021, and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).
Relying on DHS’s inherent “prosecutorial discretion”, the Mayorkas memo set limits on which facially removable aliens DHS agents and officers, and ICE attorneys, are allowed to take enforcement action against.
Like its two predecessor memos, Mayorkas’ begins by explaining that Biden’s DHS will “prioritize” enforcement action against three groups of removable aliens: (1) “threats to national security” (terrorists and spies); (2) “threats to public safety” (aliens posing “a current threat to public safety, typically because of serious criminal conduct”); and (3) “threats to border security” (aliens who entered illegally on or after the completely arbitrary date of November 1, 2020).
All resources are limited, so it only makes sense to “prioritize” which removable aliens DHS is going to go after first. Right?
Not really, for several reasons, not least of which is that the Mayorkas memo deliberately wastes the limited immigration resources it claims to be conserving.
For example, unlike the first two memos, the Mayorkas memo doesn’t limit the category of aliens who are a priority “threat to public safety” to those who have been convicted of aggravated felonies (as the prior two did), but instead focuses on aliens who have engaged in “serious criminal conduct”.
The gravity of the offense, its sophistication, the degree of harm caused, whether a weapon was used, and whether it is just the latest in a string of crimes all go into the determination of whether the latest offense is serious, and thus a “priority” for enforcement action.
That would have been fine had Mayorkas stopped there. He didn’t, because under his memo, even if an offense is inherently serious (like murder or sexual abuse of a minor), the secretary demands that ICE officers and agents also consider certain “mitigating” factors before taking enforcement action.
Among those mitigating factors are whether the alien is young or old; the time elapsed since the alien’s conviction; the alien’s length of presence in the United States; and whether the alien has a mental disability, was a victim of a crime, is eligible for protection or relief, or served, or has an immediate relative who served, in the military or government.
Respectfully, who cares if an alien child sex offender is a 60-year-old with bad knees whose kid works for the post office? The Immigration and Nationality Act (INA) doesn’t, and whether the alien is eligible for an immigration benefit or asylum is an issue for the immigration courts in removal proceedings, not for agents in beginning an investigation.
Nonetheless, before ICE can even talk to said child sex offender, officers are required to do a full review of that alien’s equities. That’s an epic waste of resources.
If you assumed that Congress thought about this in advance, it did, and mandated in the INA that certain criminal aliens be detained. On that basis, a group of states sued the Biden administration seeking to block the Mayorkas memo, in Texas v. U.S.
Last June, the judge hearing the states’ claims in Texas, Drew Tipton of the U.S. District Court for the Southern District of Texas, issued an order vacating the Mayorkas memo.
Both the Fifth Circuit and the Supreme Court refused to stay Judge Tipton’s order, but the justices did agree to hear a direct appeal on the merits of that order, bypassing full Fifth Circuit review. That case was argued before the Supreme Court in December, but no opinion has yet been issued.
The vacating of the Mayorkas memo should have restored the status quo prior to the Biden administration restrictions on DHS immigration-enforcement actions, but nothing (aside from lip service by DHS) suggests that to be the case.
For example, as I recently explained, ICE removed just fewer than 38,500 convicted criminal aliens in FY 2022, compared to more than 145,000 convicted criminal aliens in FY 2018 and 150,000-plus in FY 2019.
The Covid-19 pandemic — which was announced in March 2020 — cut ICE’s detention capacity and thus its ability to remove convicted criminal aliens — but the agency still deported nearly 104,000 of them that fiscal year. There may be other factors at play, but I’m not sure that’s exactly compliance with a federal court order.
The Doyle Memo. Which brings me to an April 2022 memo issued by Kerry Doyle, ICE’s principal legal advisor or “PLA”, the agency’s de facto general counsel.
As I explained shortly after it was released, the Doyle memo is “a 17-page directive to attorneys in ICE’s Office of the Principal Legal Advisor (“OPLA”, which represents the United States in immigration court) telling them to tank cases that don’t fit into the president’s immigration “priorities”.
Shortly after the Doyle memo was issued, the New York Times reported that it could affect 700,000 pending cases in the nation’s immigration courts, about 40 percent of the then-total.
According to the paper, this was an effort by the Biden administration “to clear potentially hundreds of thousands of deportation and asylum cases pending before immigration courts, an unprecedented move that could significantly reduce the current backlog of 1.7 million cases.”
Respectfully, that’s like alleviating the crushing burden on the nation’s emergency rooms by turning away patients born on Mondays, Wednesdays, and Fridays. But I digress.
In her memo, PLA Doyle first directs her lawyers to review all their (hundreds of thousands of) cases to determine which ones fall within Mayorkas’ three priorities if they have not been “classified for prioritization” already.
Priority cases are to be identified within PLAnet (OPLA’s case management system) based on their specific priority, while cases not falling within any of those three narrow classifications are to “be classified, and recorded in PLAnet, as a nonpriority case”.
Such seemingly benign recordkeeping will allow Doyle and other DHS commissars to make sure that their diktats are being followed, but Doyle goes one step further by rendering local OPLA chief counsels “ultimately responsible for the priority determinations made by the attorneys in their OPLA field locations”.
Specifically, those chief counsels are directed to approve any designation of a case as a “threat to national security” or a “threat to public safety” (Doyle apparently trusts her lawyers enough to figure out when November 1, 2020, was). That means that those chief counsels are ultimately on the hook if some Biden apparatchik disagrees with their lawyers’ assessments.
You can trust that ICE attorneys and chief counsels understand the implications of the PLA’s statements and recognize that PLAnet is now an electronic watchdog.
Nor does this wasteful “prioritization” end once an initial determination is made. If an ICE lawyer learns “additional information that is material to the” alien respondent’s priority (or nonpriority) determination, including “affirmative submissions by the” alien, “the attorney should reassess the case in light of that information to evaluate whether it either reinforces or contradicts that earlier determination.”
ICE’s FY 2024 Budget Justification. It’s one thing to hear how bureaucratic waste is supposed to happen, and yet another thing to see it in action. For that, I turn to ICE’s FY 2024 budget justification.
Referencing ICE’s line attorneys who actually appear in immigration court, in the agency’s office of “Field Legal Operations (FLO)”, it states:
In FY 2022, FLO attorneys represented DHS in more than 840,718 removal hearings before EOIR and completed nearly 250,000 cases. These completions included 40,977 orders of relief, 108,650 removal orders, and 17,149 orders to administratively close proceedings. ... To promote efficient docket management, and conserve its limited resources, FLO attorneys used their inherent authority to exercise prosecutorial discretion (PD), where appropriate. In FY 2022, FLO attorneys completed over 361,540 case reviews for PD, primarily in the forms of dismissal or administrative closure. FLO attorneys exercised PD by agreeing to dismiss and administratively close over 91,938 cases.
There’s a lot to unpack there, but I’ll make it brief.
First, it’s good to know ICE attorneys are still out there in the trenches, but it’s a little unclear how ICE removed fewer than 38,500 convicted criminal aliens in a year that its attorneys obtained more than 108,000 removal orders.
Second, having ICE FLO lawyers plow through more than 360,000 cases to determine which ones were subject to arbitrary rules in a vacated memo is the definition of government waste. I did the job during the (much more sensible) Clinton administration, and barely had time to look at my next case.
Third, “administrative closure” is when an immigration judge shelves a case to some point in the distant future. Biden’s DOJ has stopped providing administrative closure statistics (shamefully, in every sense), but when it last did in January 2022, the average length of time a case had been administratively closed was “6,199 days (approximately 17 years)”.
Punting on more than 17,000 cases until 2040 is nothing to boast about.
Fourth, and relatedly but most importantly, ICE FLO lawyers either agreed to administratively close or dismiss nearly 92,000 cases last fiscal year — 84 percent as many as removal orders they obtained.
Nothing — and I mean nothing — in that excerpt or anywhere else in the budget justification suggests that any of those aliens weren’t removable, though from experience I can tell you a handful were.
That means that tens of thousands of removable aliens — including criminals — whom Congress said should be removed weren’t. And they are here forever, or at least until sanity prevails again.
You, the American taxpayer, are paying for all of this, but worse, you are paying hundreds of millions of dollars for immigration enforcement you deserve, but the Biden administration says you can’t have.
What About Judge Tipton’s Order? Of course, that all raises the question of whatever happened to Judge Tipton’s order, which reset the clock on immigration enforcement back to the day before Joe Biden took office.
The Doyle memo clearly explains it was issued “in accordance with” the Mayorkas memo (reference to which begins the Doyle memo itself) and a separate memo issued by the DHS general counsel.
And a full page of the Doyle memo is expressly dedicated to the three priorities in the Mayorkas memo, while four-plus more (captioned “Construing the Three Enforcement Priorities”, just so you don’t miss it), explains the parameters of the Mayorkas memo’s priorities, but yet for some reason, Judge Tipton’s order doesn’t appear to have impacted implementation of the Doyle memo itself in the least.
Notably, the Mayorkas memo (for the time being, at least until the Supreme Court rules) has a large flag at the top that reads:
On June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating Secretary Mayorkas's September 30, 2021 memorandum Guidelines for the Enforcement of Civil Immigration Law (Mayorkas Memorandum). Accordingly until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.
But no such caveat or restriction tops the Doyle memo. Good as gold.
And speaking of lip service, here’s how the budget justification handles the issue: “To be clear, FLO attorneys ceased applying the Mayorkas memorandum and its priorities in any manner upon issuance of a final judgment by the U.S. District Court for the Southern District of Texas on June 10, 2022.”
Did you get that? “To be clear”. There’s nothing to see here, so move along, you peon.
Waste. ICE’s budget justification is supposed to explain why Congress should give it money. But the FY 2024 version details instead how the agency’s lawyers, apparently implementing vacated policies, tanked nearly 92,000 cases in FY 2022, costing untold millions. That’s waste, pure and simple.