The Chilling Implication of Biden’s Enforcement Policies

Are there a million-plus aliens who pose a threat to the United States, and more on the way?

By Andrew R. Arthur on December 8, 2021

On December 6, my colleague Jessica Vaughan published a report titled “Deportations Plummet Under Biden Enforcement Policies”. Vaughan offers ICE statistics to show that the number of dangerous criminal aliens removed from communities across the United States has plummeted, largely thanks to President Biden’s restrictions on ICE enforcement. Overlooked in those policies is the claim that the United States is plagued by large numbers of criminal and national security risks.

One would have to have an insouciance toward serious criminality to argue that aliens convicted of the offenses Vaughan details do not pose a danger to the community. Removals of aliens convicted of homicide, aggravated assault, sexual assault, and robbery have all fallen under Biden’s immigration-enforcement regime.

Why, exactly, would the president not want to remove sexual offenders? That requires some explanation — and a serious suspension of disbelief. Alternatively, and chillingly, the president is contending that the country’s well-being is imperiled by more than a million aliens who pose national security, public safety, and border threats to the Republic.

ICE’s Capacity to Remove Aliens. As I explained in a February 23 post, ICE’s “limited resources” have been an oft-repeated excuse for not enforcing the immigration laws since the Obama administration, and are the reason offered by the Biden administration for its blatant refusal to deport criminal aliens from the United States. How limited are ICE’s resources really?

A March 2011 memo from then-ICE Director John Morton (captioned "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens", and known as "the Morton memo") was the first ICE document to offer limited resources as an excuse for not enforcing the law.

Curiously, however, the then-director claimed in that memo that ICE could only remove about 400,000 aliens annually. In FY 2011, when Morton made that claim, ICE had 20,142 employees and a budget of $5.342 billion. That fiscal year, the agency removed 223,755 aliens from the interior, and an additional 173,151 aliens who had been arrested by CBP at the border (for a total of 396,906, just missing its potential ceiling — as identified by Morton — by 94 removals).

By FY 2021, ICE had funding for 21,102 employees (a modest increase of almost 4.8 percent) and a budget of $7.875 billion (a significantly less modest 47.4 percent increase). And yet Vaughan projected that ICE removed only about 62,000 aliens in FY 2021 (ICE has not yet released its FY 2021 removal numbers) — a decrease of more than 84 percent since FY 2011.

So, if ICE had the resources to remove about 400,000 aliens a decade ago, and if those resources have only increased in the interim, why have removals dropped so precipitously? To explain that answer, it is necessary to look at the Biden administration’s enforcement “priorities”.

Biden’s Immigration-Enforcement Policies. The Biden administration’s immigration-enforcement policies are actually spread out over a number of different documents.

The first was a memo dated January 20 from then-Acting DHS Secretary David Pekoske, captioned “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” (the Pekoske memo). The Pekoske memo announced a 100-day review of DHS enforcement policies, as well as a 100-day hold on almost all removals from the United States (the latter was blocked by a federal judge and then expired).

Blaming “limited resources”, the Pekoske memo narrowed immigration enforcement to three specified “priorities”: spies, terrorists, and other threats to national security; aliens who entered illegally on or after November 1, 2020; and aliens released from incarceration on or after January 20 who had been convicted of aggravated felonies (as defined in section 101(a)(43) of the Immigration and Nationality Act (INA)).

Thereafter, on February 18, Acting ICE Director Tae Johnson issued his own guidance, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (the Tae Johnson memo).

The Tae Johnson memo slightly expanded the class of aliens deemed enforcement priorities in Pekoske memo. Spies, terrorists, and removable aliens who were not here on October 31 still made the list, but the priorities in the February 18 guidance also included non-detained aggravated felons and certain gang members, if they “pose[] a risk to public safety”.

Those two memos were subsequently revoked in the latest Biden administration immigration-enforcement directive, a September 30 memo from DHS Secretary Alejandro Mayorkas, captioned “Guidelines for the Enforcement of Civil Immigration Law”.

Like the Pekoske and Tae Johnson memos, Mayorkas’ listed the same three enforcement priorities: spies and terrorists; aliens posing a threat to public safety (“typically because of serious criminal conduct”); and aliens who entered illegally after October 31, 2020.

Unlike its predecessors, however, the Mayorkas memo gave a bit more latitude to ICE officers to pursue other removable aliens — but only on paper. It requires those agents to engage in a pointless pre-enforcement process that balances the threat that aliens subject to removal pose to the public against their own personal circumstances (such as the effect of their removal on their family members and any rehabilitation since their offenses).

Notably, Mayorkas asserts: “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.” In other words, just because Congress says that aliens are removable and should be removed does not mean that the secretary agrees.

Biden Administration: America Is Beset by and Vulnerable to Dangerous Aliens. All of this brings me to the chilling implication of these restrictions on immigration enforcement.

Again, if everything we were told by the Obama administration is true, ICE has the resources to remove at least 400,000 aliens. The Biden administration contends that it is requiring ICE officers to be choosy in how they use those resources however, in order to focus their efforts on aliens “who pose a threat to national security, public safety, and border security and thus threaten America' s well-being”, in Mayorkas’s words.

One could dismiss that statement as an excuse to grant de facto amnesty to the vast majority of aliens illegally present in the United States. Consider, however, the implications if Mayorkas were taken at his word.

The secretary’s assertions would lead to the logical conclusion that there are at least 1.2 million aliens in this country who “threaten America’s well-being” to such an extent that ICE officers must ignore large numbers of murderers, violent felons, and sex offenders in order to pursue them.

Why 1.2 million aliens? Again, ICE has the resources to remove about 400,000 aliens annually, and there are just over three years left in the president’s first term. Mayorkas has to act fast, and as Vaughan’s report shows, the agency is already starting in a hole.

The Dangers Lurking at the Border. The Mayorkas, Tae Johnson, and Pekoske memos are not the only official documents in which the Biden administration makes such claims. In August, the administration proposed amendments to the regulations governing how aliens apprehended entering the United States illegally are released from DHS custody under authority conferred by Congress known as “parole”.

Under section 212(d)(5) of the INA, release of an arriving alien — like illegal migrants — is available only on a case-by-case basis, and even then only “for urgent humanitarian reasons or significant public benefit”.

Pursuant to the proposed regulatory changes, however, the Biden administration would confer on itself the ability to release almost every alien who enters illegally. How would that benefit the public? This is where it gets really scary.

The administration’s proposal explains that: “This change would allow DHS to prioritize use of its limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety.” (Emphasis added.)

“Threats to the national security” usually means terrorists and spies, and “threats to public safety” in the border context usually denotes criminals, smugglers, and cartel members.

Note, most significantly, the modifier “greatest threats” above, suggesting that some aliens released on parole would pose a “national security and public safety” threat as terrorists, spies, criminals, smugglers, and cartel members, but that releasing them is a necessity to protect the commonweal from some truly unsavory characters for whom detention is a must.

Detention Space. How much detention space does DHS have for all of these criminals, terrorists, and spies? Detention space is measured in terms of what is called “average daily population” (ADP), the number of beds available on a daily basis for detainees. The president’s FY 2022 budget calls for an ADP of 32,500 — 30,000 beds for adults and an additional 2,500 for adult migrants and children in family units.

That gives you an idea of how many hardcore threats to public safety and national security the Biden administration claims there are in America, and pouring over our borders, daily. Of course, it takes a bit of time to deport those aliens, but not as long as you might think.

A Warning or a Justification? To underscore the points made above, taken at its word, the Biden administration believes — truly believes — that there is such a large population of dangerous criminals and threats to the national security that it must dispense with congressional mandates in the INA to enable ICE officers to deal with the threat. And that there are so many terrorists, spies, criminals, smugglers, and cartel members coming to our borders that it must release a few nefarious individuals to deal with the most serious ones.

I cannot imagine the obloquy that I would receive in the Twitterverse and elsewhere if I were to make such a statement. But I don’t have to, because that is the official policy of the Biden administration.

Of course, there are plenty of reasons to believe that these statements are all eyewash.

For example, despite the dire warnings in the regulatory parole proposal, the president is asking for 1,500 fewer daily detention beds than DHS had when he became president. If the contention is that there are so many threats encountered at the border that we need to prioritize their detention, shouldn’t the administration be asking for more detention beds?

And if ICE’s resources are really so strained, why waste officers’ time researching the effects removal will have on a child sex offender’s family before he is taken into custody?

That said, the administration cannot have it both ways. DHS can claim that its resources are scarce and that alien threats are many, and actually start removing criminal aliens, or it can drop the pretenses and free up ICE officers to enforce the law. As Vaughan’s reporting reveals, right now it is doing neither.