Is the Administration Ignoring Federal Court Orders on Migrant Releases?

The strange case of the convicted murderer found residing on a secure U.S. military base after being cut loose by Border Patrol and absconding from ICE

By Andrew R. Arthur on November 7, 2023

On November 1, ICE Enforcement and Removals Operations (ERO) issued a press release captioned “ERO Boston arrests fugitive convicted of homicide in Venezuela at Joint Base Cape Cod, Massachusetts”. Not only does that press release underscore the public-safety vulnerabilities created by the Biden administration’s non-detention policies at the Southwest border, but it also doesn’t make any sense — unless the White House has altered its migrant release policies in derogation of federal court orders.

”Jordano Gotopo-Lopez, 38, Was Convicted of Murder in 2006”. That release begins:

Enforcement and Removal Operations (ERO) Boston arrested an unlawfully present fugitive convicted of homicide in Venezuela who resided in state-provided housing on Joint Base Cape Cod in Bourne on Oct. 27.

The Venezuelan national, 38, failed to disclose his previous homicide conviction to U.S. Border Patrol officials when they arrested him for unlawfully entering the United States in Eagle Pass, Texas, on July 31. He was processed and given a notice to appear at ICE offices within 60 days, which he failed to do.

Notably absent from that press release is the name of the 38-year-old Venezuelan national who was released into the United States after entering illegally after failing to mention that he had a “previous homicide conviction” (which is a fairly salient issue).

That raises the question of why this particular DHS law-enforcement component concealed this offender’s name. Is it due to the privacy interests of illegal alien murderers? If so, as a former government lawyer I can assure you that they don’t have any.

Fortunately, the Boston Herald provided the identity of the 38-year-old illegal Venezuelan migrant in question in a November 2 article. He’s “Jordano Gotopo-Lopez” and he “was convicted of murder in 2006 yet made his way across the southern border in July”.

The Skipped, but Crucial, U.S. Visa-Issuance System. “Murder” is a crime involving moral turpitude (CIMT) and an aggravated felony. Consequently, had Gotopo-Lopez applied for a visa at the U.S. consulate in Caracas, he would have been ineligible as an alien inadmissible to the United States under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA) due to his CIMT conviction.

Had he gone through the lawful visa-issuance process (which the INA mandates for aliens seeking to travel to the United States), the consular officer would have required him to prove that he did not have a criminal record barring his admission — which he couldn’t have done because he was convicted of murder.

Under the lawful immigration system, Gotopo-Lopez would have been stopped before he ever left home, but of course he was not stopped because he apparently never tried to apply for a visa to come here.

The Overcrowded and Hectic Border Patrol Processing Center. Even if he had erroneously been issued a visa to come here, however, the CBP officer who inspected him at the port of entry would have barred him from admission on the same ground. But of course, he never sought lawful admission through a port of entry, either. He simply crossed the Rio Grande illegally near Eagle Pass, Texas.

That was when Border Patrol had to figure out his criminal history, likely at an overcrowded and hectic “processing center” once Gotopo-Lopez was already in the United States.

Eagle Pass, Texas, is in the Border Patrol’s Del Rio sector, and in July (when Gotopo-Lopez entered illegally), agents there apprehended more than 24,500 illegal migrants — nearly six times as many as they had in July 2020 (4,163).

Not to be alarmist, but that was actually a fairly slow month in Del Rio sector by Biden-era standards — agents apprehended more than 45,000 there in September and had encountered nearly 52,000 others in December. How many convicted murderers — or worse — were agents forced by the Biden administration to release into communities across the United States then?

“DHS Has No Way to Determine if an Alien Has a Criminal History in his Home Country”. That of course leads to ICE’s complaint in that press release that Gotopo-Lopez “failed to disclose his previous homicide conviction to U.S. Border Patrol officials when they arrested him”. Did they really assume — let alone conclude — that a convicted murderer who entered the United States illegally would be so forthcoming?

This simply once again underscores findings U.S. district court Judge T. Kent Wetherell II made in his March 8 opinion in Florida v. U.S.

Florida v. U.S. and the Bar to Migrant Releases on Parole. I have written extensively about Judge Wetherell’s findings in that case, largely because they offer what few glimpses of light there are into what is going on at the border, a process that the administration has kept cloaked under a veil of secrecy and surrounded by a bodyguard of lies.

Florida began in September 2021, when the state of Florida filed a complaint alleging the administration was deliberately “ignoring” congressional mandates in section 235(b) of the INA that require DHS to detain migrants who have crossed the Southwest border illegally.

After almost 15 months of intense discovery, deliberation, and argument, Judge Wetherell largely agreed, finding that the Biden administration has a de facto overarching non-detention policy for illegal entrants that is contrary to Congress’ detention requirements in the INA.

Most saliently for purposes of this analysis, the judge found:

DHS has no way to determine if an alien has a criminal history in his home country unless that country reports the information to the U.S. government or the alien self-reports. Therefore, DHS is mainly only screening aliens at the border to determine if they have previously committed a crime in the United States, and because many of these aliens are coming to the United States for the first time, DHS has no idea whether they have criminal histories or not.

By the way, I say that Gotopo-Lopez’s case “simply once again proves” Judge Wetherell’s point because this is the second convicted murderer whom ICE ERO had to chase down after he lied to Border Patrol agents about his criminal history.

The first, a Brazilian, is a member of Primeiro Comando Da Capital (that country’s largest criminal gang) with an “extensive, violent criminal history which includes his conviction for homicide as well as convictions for attempted murder, robbery and aggravated assault on a police officer in Brazil”. That similarly unnamed illegal-alien murderer was also located in Massachusetts, as I reported in June.

How many unnamed alien murderers is ICE actively trying to find due to Biden’s border release policies? And why are these stories coming out of a single state that — while a terminus for many illegally released illegal aliens — isn’t the prime destination that New York, California, Texas, and Florida are?

Joint Base Cape Cod — A “Full Scale, Joint-Use Base Home to Five Military Commands”. Notice also that ICE sort of slides in the fact that Gotopo-Lopez was “resid[ing] in state-provided housing on Joint Base Cape Cod” (JBCC) when ERO found him.

There has been a huge push by the states to force the Biden administration to open up military facilities to house released migrants who find themselves otherwise unable to fend for themselves, and the housing at JBCC appears to be more of the same. There is a lot of unused military housing in this country, so I can understand the states’ logic, as vacant barracks are cheaper than booked hotels.

Except JBCC isn’t vacant — according to its website, it’s “a full scale, joint-use base home to five military commands training for missions at home and overseas, conducting airborne search and rescue missions, and intelligence command and control”.

Not only that, but JBCC’s “Cape Cod Air Force Station is the only land[-]based radar site providing missile warning for the eastern coast of the United States and southern Canada against intercontinental and sea-launched ballistic missiles”. Are Langley, Fort Meade, and the Pentagon full of illegal migrants, too?

Most murderers aren’t national-security risks (they simply pose a threat to the local community), but is no one thinking to vet illegally released illegal aliens before they are allowed to take up residence in “full scale, joint-use base[s] home to five military commands” that are also critical radar sites? Who else is living there unscreened, and what are their intentions?

“He Was Processed and Given a Notice to Appear at ICE Offices Within 60 Days.” None of those passages in the ICE press release make sense, but what really does not make sense is the following sentence: “He [Gotopo-Lopez] was processed and given a notice to appear at ICE offices within 60 days, which he failed to do.” Here’s my confusion.

There is a DHS document known as a “Notice to Appear”, Form I-862, which plays a critical role in the removal process. It’s “critical” because the INA mandates that agents use it when placing aliens into removal proceedings, and it serves a similar role to an indictment or complaint in a criminal case.

As USCIS explains, the I-862 Notice to Appear “instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them.” No Notice to Appear, no removal proceedings.

My confusion arises because first, the I-862 is a formal government document and therefore “Notice to Appear” is a term of art and usually capitalized when DHS is referring to the I-862; and second, Notices to Appear tell aliens to appear in immigration court, not “at ICE offices within 60 days”.

Perhaps the press release is simply an example of sloppy writing, but there’s reason to believe that there is more to it.

Which brings me back to Judge Wetherell’s opinion in Florida, which focused on the three “pathways” the administration has been using to release illegal migrants into the United States.

Those three border-release pathways are: (1) “Parole+ATD”, that is, parole under section 212(d)(5)(A) of the INA with so-called “alternatives to detention”; (2) the issuance of a Notice to Appear followed by release on the alien’s own recognizance (OR) using DHS’s general arrest and release authority in section 236(a) of the INA; and (3) quick release with a “Notice to Report”, or “NTR”.

Judge Wetherell blocked releases on Parole+ATD, while he found no authority in section 236(a) of the INA for DHS to release aliens on OR. But, what about NTRs?

As he explained in his opinion, in March 2021, Border Patrol issued a memo that:

allowed [U.S. Border Patrol, “USBP”] agents to release aliens into the country more quickly with only minimal processing and without initiating removal proceedings. As one ICE official described it, USBP was releasing aliens at the border under the March Memo with nothing more than a “piece of paper that said ‘go find somebody at ICE.’” The “piece of paper” was a Notice to Report (NTR) and, thus, the Court refers to the March Memo as the NTR policy.

The NTR policy was aptly described by Florida in its original complaint as “immigration enforcement by the honor system” because, under the policy, arriving aliens were not placed in removal proceedings and, instead, they were simply released into the country with direction to self-report to an ICE office to be placed in removal proceedings.

Not surprisingly, “only a fraction ... (approximately 30%)” of the aliens released under the NTR policy reported to ICE as directed.

Judge Wetherell later continued:

From a practical standpoint, the Parole+ATD “pathway” described in the November Memo is indistinguishable from the NTR pathway because the memo explained that an alien released under Parole+ATD is not issued an NTA and only condition of the release on “parole” is that the alien “report to ICE within 15 days to be processed for an NTA.”

As noted, the court in Florida shut down Parole+ATD releases, however, and in May blocked a separate “Parole With Conditions” scheme that was also “indistinguishable” from Parole+ATD.

The Biden administration asked Judge Wetherell to stay that order, complaining that it needed the Parole with Conditions pathway because requiring agents to issue Notices to Appear to the thousands of aliens it was releasing daily would be too time-consuming. The judge denied that request, and when the administration asked the 11th Circuit for a stay of his order, a three-judge panel said “no”, as well.

At the time Judge Wetherell issued his March and May opinions, DHS had stopped issuing NTRs (after releasing nearly 95,000 border migrants under that make-shift scheme), and for that reason it did not factor into his assessment in either case.

As with the so-called “notice to appear” Gotopo-Lopez received at the border, NTRs also directed migrants to appear at the nearest ICE office “within 60 days of release”, as the DHS Office of Inspector General explained in a September report captioned “DHS Does Not Have Assurance That All Migrants Can be Located Once Released into the United States”.

Is DHS attempting to skirt the orders Judge Wetherell and the 11th Circuit issued in Florida by returning to its old NTR release protocol? I would not state as much, and hopefully Biden’s DHS isn’t coy (or stupid) enough to attempt such a ploy, but then I would hope that Biden’s DHS wasn’t stupid enough to release convicted murderers into the United States, either.

An ICE press release on its arrest of Jordano Gotopo-Lopez, an illegal migrant released by Border Patrol even though he’d been convicted of murder in Venezuela, who thereafter took up residence on a secure U.S. military base, casts the administration’s border policies in a bad-enough light. Congress may want to take a look at it, and investigate whether it also reveals that the government is ignoring court orders, too.