The House Judiciary Committee issued an interim staff report last week captioned: “Quiet Amnesty: How the Biden-Harris Administration Uses the Nation’s Immigration Courts to Advance An Open-Borders Agenda”. It explains how the administration has allowed putatively removable aliens to remain by tanking their cases in immigration court. I’d call it a “blockbuster”, but that term generally describes previously unknown facts, and in this case those facts have long been there for everyone to see. They just haven’t looked, either due to ignorance or indifference.
The “Mayorkas Memo” and the “Doyle Memo”. By way of brief background, most of the issues discussed in that report initially stem from a series of early policy documents issued by the Biden-Harris administration that curbed immigration enforcement.
Those policies were largely incorporated in a September 2021 document issued by DHS Secretary Alejandro Mayorkas, captioned “Guidelines for the Enforcement of Civil Immigration Law” (the “Mayorkas Memo”).
In it, Mayorkas claimed that he was attempting to preserve limited ICE resources by “prioritizing” certain classes of aliens for “enforcement action”, meaning investigation, apprehension, detention, prosecution, and removal.
In its impact, however, the Mayorkas Memo wasted the very resources it purported to preserve by requiring ICE officers and attorneys (the latter of whom represent the government in immigration court) to consider irrelevant “mitigating factors” before taking any enforcement action, and to constantly reassess them thereafter.
Those factors include the alien’s youth or senescence, length of presence in the country, family ties, and eligibility for immigration relief, and even whether any of the alien’s family members are in the armed services or otherwise work for the government.
Those are all valid factors for adjudicators to consider in deciding whether to grant immigration benefits as a matter of discretion, but they are completely irrelevant to the question of whether the alien should be subject to enforcement. In that instance, the sole question is whether the alien is removable or not.
In April 2022, ICE’s Principal Legal Advisor (“PLA”, the agency’s de facto general counsel), Kerry Doyle issued her own directive, “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion” (Doyle Memo).
That 17-page guidance implements the Mayorkas Memo and applies its priorities and restrictions on ICE attorneys in immigration court.
Among other things, the Doyle Memo makes clear that ICE attorneys in immigration court are expected “to use their professional judgment to do justice in each case, whether the decision relates to: filing an NTA; moving to dismiss, administratively close, or continue proceedings; stipulating to issues, relief, or bond; or pursuing an appeal”.
In that context, “NTA” refers to the Notice to Appear, the charging document in removal proceedings. Like an indictment or complaint in a criminal case, the NTA is served on the alien respondent and filed with the court and lays out the reasons why DHS asserts that a given respondent is removable.
Understand that nearly all aliens charged with removability in those NTAs are removable, and in fact removability isn’t really even an issue in the vast majority of cases. Respondents entered illegally or they didn’t; they violated the terms of their nonimmigrant statuses or they didn’t; they committed a crime or they didn’t.
And in most of those cases, respondents quickly concede to allegations in the NTA to get to the next stage of removal proceedings in immigration court: applying for relief from removal such as asylum, a waiver, or adjustment of status, or for a privilege like voluntary departure in lieu of removal.
Respectfully, ICE attorneys “do justice” in any case by fairly and thoroughly litigating the issues therein and ensuring that any relief from removal granted by the immigration court is appropriate as a matter of law and discretion — not by dismissing or closing cases before such determinations are made.
When cases are dismissed or closed at ICE’s request or with its consent before immigration judges can decide whether respondents are removable or eligible for relief from removal, the result in most cases is that facially removable aliens are allowed to continue living and working in the United States despite the fact Congress has said they should be removed.
Hence the committee’s reference to a “quiet amnesty”, which is especially apt when those aliens have no status in the United States, either because they entered illegally or because they overstayed a visa.
“Workload and Adjudication Statistics”. The immigration courts are administrative tribunals within the Department of Justice’s Executive Office for Immigration Review (EOIR), and to its credit EOIR publishes a lot of information about what’s happening in those immigration courts on a webpage captioned “Workload and Adjudication Statistics”.
Go to the link titled “New Cases and Total Completions”, for example, and you will see that through the third quarter of FY 2024, the immigration courts received just over 1.5 million new cases, and completed more than 511,000 of them — nearly twice as many completions as in FY 2019 (277,078).
That suggests that while immigration judges aren’t keeping up with the case flow, they still moved a half million-plus cases through the end of June and are increasing their capacity to manage the backlog.
But those statistics are deceiving, as you’ll realize when you click on a separate link captioned “FY 2024 Decision Outcomes”.
It shows that in removal cases completed through the third quarter of the last fiscal year, immigration judges ordered nearly 218,000 respondents removed, granted relief or protection to more than 35,000 others, allowed 6,100 aliens to voluntarily depart — and terminated or dismissed nearly 225,000 other cases.
A handful of cases are normally terminated or dismissed annually, usually because respondents aren’t removable or because they aren’t actually aliens, having derived citizenship in one manner or another. I can assure you as a former immigration judge myself, however, that it doesn’t happen more than a couple thousand times a year, let alone hundreds of thousands of times in just nine months.
You don’t have to rely on my personal experience, however. Click on the link marked “Asylum Decisions”.
As the accompanying footnote explains, it’s a chart showing “asylum decisions on affirmative and defensive applications issues in completed removal, deportation, exclusion, and asylum only proceedings or in proceedings that have been administratively closed”.
Respondents can only seek asylum after they’ve been found removable, meaning there’s no question that this class of aliens were subject to removal.
Of the more than 200,000 asylum cases “completed” in the first three quarters of FY 2024, however, more than half — 109,000-plus — were never adjudicated. How can EOIR claim that immigration judges are completing tens of thousands of asylum cases if the asylum claims haven’t been adjudicated?
I have no idea, because when I left the bench in FY 2015, there were zero “not adjudicated” cases. Apparently, it happened about 12,000 times between FY 2018 and FY 2020, which certainly merits some explanation by the last administration, but when more than half of all asylum completions involved cases that were never decided, it’s simply an abuse.
And FY 2024 was not the outlier under this administration.
As the committee report explains: “Under the Biden-Harris Administration, more than 700,000 illegal aliens have had their cases dismissed, terminated, or administratively closed, allowing those aliens to stay in the country indefinitely without facing immigration consequences”.
Both President Joe Biden and Vice President Kamala Harris have complained that the immigration system is “broken” — not that they admitted to having anything to do with that fact — and as I look at these statistics, I have to agree.
Any enforcement system divorced from consequences is unsustainable — and the longer that goes on, the more difficult it’s going to be for Congress or any future administration to fix it, short of a massive, “non-quiet” amnesty.
Reopening and Dismissal. And yet, somehow, it gets worse, because as the committee report explained:
In addition to ensuring that immigration judges do not adjudicate aliens’ cases, the Biden-Harris Administration has worked to undo immigration judges’ previous decisions by encouraging ICE attorneys to join motions to reopen cases. The Doyle Memo outlined how ICE attorneys may join aliens’ motions to reopen their cases so that ICE can then agree to dismiss the case altogether. Aliens and ICE attorneys took note. In just the first nine months of fiscal year 2024, 31,191 motions to reopen were filed with the immigration courts, compared to an average of 17,920 motions to reopen during the Trump Administration — a 74 percent increase.
In other words, tens of thousands of old cases involving aliens who received their day in court and were ordered deported are being reopened even though many if not most of those respondents are removable and still don’t have any relief.
That’s not “breaking” the immigration system; it’s smashing it into bits, pouring gasoline on the fragments, setting them on fire, and then tossing the ashes to the four winds.
Unless, of course, your idea of a properly functioning immigration system is one in which there are no consequences and everybody who gets here can remain regardless of how they arrived or what they’ve done since they came. In that case, “mission accomplished”.
One could argue the Immigration and Nationality Act shouldn’t be strictly applied in a limited number of cases involving particularly sympathetic aliens. But for the executive to simply ignore the law, as this report indicates has happened and DOJ’s own stats confirm, is a derogation of its constitutional duty to “take care” that the laws are “faithfully executed”, and an affront to Congress’s “plenary power” over immigration.
Before anyone calls our immigration system “broken”, they should first try enforcing the laws as written. Because right now, that’s not happening.