On June 25, President Biden signed S. 2938, a gun bill titled the “Bipartisan Safer Communities Act”, to great fanfare. One of the most lauded provisions in the law closed the so-called “boyfriend loophole”, which had allowed individuals convicted of domestic violence offenses access to firearms. That fix — and the praise for it — raises the question of why DHS Secretary Alejandro Mayorkas’ efforts to give alien domestic abusers a pass in his (currently vacated) immigration enforcement guidelines have been roundly ignored.
The Boyfriend Loophole. Under 18 U.S.C. § 922(d)(9), it is a federal crime for any individual to sell or dispose of a firearm or ammunition to anyone who “has been convicted in any court of a misdemeanor crime of domestic violence”.
Prior to amendment in S. 2938, the term “misdemeanor crime of domestic violence”, in turn, was defined in 18 U.S.C. § 921(a)(33)(A) as:
[A]n offense that—
(i) is a misdemeanor under Federal, State, Tribal, or local law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. [Emphasis added.]
Section 12005 of the Bipartisan Safer Communities Act amended the second clause in the excerpt above by striking the “or” before “by a person” where highlighted, and inserting the following at the end: “, or by a person who has a current or recent former dating relationship with the victim”.
It also adds a new paragraph (a)(37) to 18 U.S.C. § 921, creating a calculus for determining whether a “dating relationship” exists or once existed, with a new subparagraph (C), explaining: “A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship.”
The intent of this amendment is clear, even if it appears that there may be issues with the application of the terms therein: Congress takes all domestic violence seriously, to the degree that an individual threatens his or her Second Amendment rights by committing a domestic offense against any individual with whom the actor has or has had an intimate relationship.
The Mayorkas Memo. That is not the tack Mayorkas took on the issue of domestic violence in his most recent immigration enforcement guidance, formally captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).
The underlying approach of that guidance is set forth on page 2 therein, where the secretary states: “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”
In other words, just because Congress has stated in the Immigration and Nationality Act (INA) that certain aliens should be apprehended, detained, placed into removal proceedings, and removed, Mayorkas does not see it that way and feels free to ignore Congress’s mandates.
Using “limited resources” as an excuse for his non-enforcement stance, the secretary sets forth three “priorities” that immigration agents (primarily but not exclusively ICE officers) are follow in enforcing the INA.
Specifically, immigration officers are allowed to enforce the INA against spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of serious crimes (threats to public safety).
Unlike prior non-enforcement guidance memos the Biden administration has issued, the Mayorkas memo did not limit the serious crimes category to aggravated felonies and gang activity. Instead, it expanded the scope of the “threats to public safety” category to include any alien who has engaged in what was termed “serious criminal conduct”.
The gravity of the criminal offense, its sophistication, the degree of harm caused, whether a weapon was used, and whether the criminal alien is a serial offender all are to go into agents’ assessment of whether an offense was “serious”, and thus a “priority” for enforcement.
Even if the offense is deemed to be serious, however, Mayorkas directs ICE officers and agents to also consider certain “mitigating” factors before taking enforcement action.
Those mitigating factors include whether the alien is young or old; the time that has elapsed since the alien’s conviction (and whether that conviction was vacated or expunged); 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.
Congress’s Approach to Domestic Violence in the INA. As it did with respect to firearm ownership in 18 U.S.C. sections 921 and 922, Congress took a hardline on domestic abusers in the INA.
Section 237(a)(2) of the INA contains the criminal grounds of deportability, which are written in broad (and to an extent archaic) terms, like “crimes involving moral turpitude” and “violations of laws relating to controlled substances”.
Subparagraph (E) therein, captioned “Crimes of domestic violence, stalking, or violation of protection order, crimes against children”, is specific and yet sweeping by comparison.
To read that provision is to understand that Congress wants all aliens who harm, threaten, or stalk their spouses (former and current), children, or other cohabitants out of the United States, and does not want any to escape on technicalities.
The Domestic Violence Loophole in the Mayorkas Memo. Nonetheless, there is a notable and specific exception to Mayorkas’ largesse in allowing ICE officers to enforce the immigration laws against serious criminals, and it applies to domestic violence.
Explaining that what he deems as the “broader public interest” (a term he never defines) is “material in determining whether to take enforcement action”, Mayorkas states: “For example, a categorical determination that a domestic violence offense compels apprehension and removal could make victims of domestic violence more reluctant to report the offense conduct.”
I have previously described that sentence as “unacceptable and dangerous”, and if you are looking for support for that assessment, go no further than section 12005 of the Bipartisan Safer Communities Act. Congress wants to protect domestic violence victims (so do I), and if that means barring their abusers from having guns or deporting them from the United States, so be it.
I have also described Mayorkas’ sentiments as “paternalistic” because it is infused with paternalism. What Mayorkas is basically saying is that the victims of domestic violence don’t really know what they want. One would assume that a victim who calls the cops on a domestic abuser wants the actor out of his or her life — which removal would more than accomplish.
Based on nothing more than sanctimony and, again, paternalism, Mayorkas second-guesses Congress’s express command, basically ordering ICE officers to stand down on domestic abusers just in case at some point in the future the victim wants to reconcile.
On that logic, not only did Congress err when it closed the “boyfriend loophole” in the Bipartisan Safer Communities Act, but ATF and the FBI should just ignore the bar in 18 U.S.C. § 922(d)(9), too. Taken to their logical extreme, they also could “make victims of domestic violence more reluctant to report the offense conduct”.
As in section 12005 of the Bipartisan Safer Communities Act, Congress in the INA has commanded the executive branch to protect victims of domestic violence. Nonetheless, based on nothing other than paternalistic assumptions, DHS Secretary Mayorkas has decided to endanger domestic violence victims by allowing their abusers to remain in the United States. He should not be allowed to get away with it.