- Joe Biden has threatened to fire any ICE officer who arrests and deports otherwise removable aliens — including those who entered illegally — if those aliens have not been convicted of an unspecified "felony".
- Despite the fact that Biden lost his first wife and daughter in a traffic accident in 1972, the candidate has stated that he does not consider drunk driving — which claims on average 27 lives a day — to fall within his list of felonies that would justify the deportation of an illegal alien.
- Biden could grant amnesty to most if not all removable aliens through "Parole in Place", an administrative authority that most of Congress probably unknowingly blessed in statute in December 2019.
- The Biden administration could declare that all aliens not fitting his vague felony definition are not priorities for removal and should not be ordered removed.
- Biden's proposals would have a chilling effect on immigration enforcement generally, and force ICE officers to violate the spirit, if not the letter, of their oaths of office.
In my last post, I reported that Democratic presidential candidate Joe Biden promised that he would not deport any aliens for his first 100 days in office, and then only deport those aliens who have been convicted of "unspecified felonies" thereafter. He has actually taken that one step further, vowing to fire any U.S. Immigration and Customs Enforcement (ICE) officer who has the temerity to otherwise enforce the Immigration and Nationality Act (INA). It is a chilling picture of what we could wake up to on January 21, 2021.
According to the Washington Examiner in January: "2020 Democratic front-runner Joe Biden said his administration would fire Immigration and Customs Enforcement agents who arrest and deport illegal immigrants who are not guilty of felony crimes, adding that he doesn't 'count drunk driving as a felony.'" He added:
"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."
There are two points here. One is that driving under the influence (DUI) and driving while intoxicated (DWI), which are normally combined under the heading of "drunk driving", are serious offenses that endanger the community. The second is that threatening a government official with firing for the job he or she has sworn to do not only has a chilling effect on that official's performance (another way of saying "change the culture"), but is frankly despicable.
In FY 2019, ICE Enforcement and Removal Operations (ERO) officers arrested 74,523 aliens who had either arrests or convictions for drunk driving. I explained the dangers associated with this crime in a June 2017 post captioned "Sanctuary for Illegal Alien Drunk Drivers?":
One particular group of aliens who have received a significant amount of support lately from opponents of immigration enforcement are aliens who entered illegally who have been convicted of driving under the influence of alcohol (DUI) or driving while intoxicated (DWI), collectively known as "drunk drivers".
Drunk driving is an offense that is particularly prone to repetition. According to [Mothers Against Drunk Driving] statistics, "an average drunk driver has driven drunk 80 times before first arrest" and "every day in America, another 27 people die as a result of drunk driving crashes" and "about one-third of all drivers arrested or convicted of drunk driving are repeat offenders." Any individual who is arrested for DUI or DWI has likely, therefore, driven drunk tens of times before, and has an extremely high chance of doing so again.
You can read Attorney General William Barr's thoughts on the issue in Matter of Castillo-Perez, a case that involved an alien illegally present who had two DUI convictions, as well as two arrests for assault and battery on his wife, one charge of public drunkenness, and a conviction for negligent driving. He held (logically) that, "[e]vidence of two or more convictions for driving under the influence establishes a presumption that an alien ... lacks good moral character under" section 101(f) of the INA for purposes of cancellation of removal.
I wrote about that decision in an October 31, 2019, post captioned "Are Immigration Advocates Pro-Drunk Driver?" Incredibly, that is a real question.
Biden should know these dangers — his own daughter and first wife were killed in a traffic accident in 1972, in which his two sons were injured. He previously claimed that the driver in question had been drinking — allegations that he has subsequently apparently backtracked from. Whether Biden's wife and child were killed by a drunk driver or not, however, the candidate knows the pain of the senseless loss that the families of dozens of Americans feel every day.
His threat to fire ICE officers who arrest any removable alien that he, on his own caprice, decides should not be removed will have a chilling effect on ICE officers arresting any dangerous alien, whether he realizes it or not. USA Today reported in June 2018, for example, that: "Baltimore police stopped noticing crime after Freddie Gray's death. A wave of killings followed." Read that article and you will see what will happen to most if not all immigration enforcement should Biden's threats come to pass. Talking about "changing the culture".
Of course, it is not easy to fire a government employee, but Biden could potentially make this foolhardy intimidation stick. Specifically, he could grant most if not all aliens, other than the ones he himself thinks should be deported, "parole in place" (PIP) through diktat. I explained all of this in a December 26, 2019, post captioned "Why Is 'Parole in Place' in the NDAA? Sympathetic cases legislate bad law", and described how Congress (likely largely unknowingly) had empowered a future administration to do exactly what "Uncle Joe" now promises.
I stated therein:
Expect [paragraph 1758 of the National Defense Reauthorization Act for Fiscal Year 2020 (NDAA 2020)] to be used by a future president to grant future amnesties. DACA and DAPA rested on the slim reed of "prosecutorial discretion". The next administrative action to grant status to those who entered illegally, on the other hand, will set firmly on the rock of Congress's recognition of the "authority of" DHS to grant "parole in place" — implicit in Congress's reaffirmation of the "importance" of that authority is Congress's conclusion that DHS has the authority to begin with.
A conviction for drunk driving, per se, is not a ground of removability or inadmissibility, so the former vice president could simply grant all of those drunk drivers, as well as any other aliens who entered illegally, PIP. And Barr's decision in Matter of Castillo-Perez could simply be reversed by President Biden's attorney general.
And the other criminals who Biden wants to remain in the United States? He could have the Department of Homeland Security issue a memorandum stating that they are not "priorities for removal", as President Obama's Homeland Security Secretary Jeh Johnson did on November 20, 2014.
That memorandum placed removable aliens in one of three "Civil Immigration Enforcement Priorities", three being the lowest. As that memorandum stated:
Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. [Emphasis added.]
Understand — the lowest priority was aliens who had received due process and been ordered removed, and even then they could get a pass. It continues:
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest. [Emphasis added.]
And, regrettably, as that memorandum shows, the "judgment" highlighted above could be exercised by the head of ICE, the secretary of Homeland Security, or President Biden himself, as Biden could call the shots on what is "an important federal interest" — the conclusions of the people's representatives as legislated in the INA be damned.
The general oath of office for federal officials is set forth in 5 U.S.C. § 3331. It states:
I ... do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
I have taken this oath on many occasions, and meant it every time. Every ICE agent I know means it, too. Joe Biden has promised that he will violate his oath of office, but he should not force hardworking and dedicated government employees to do the same, just so that he can win a few votes.