The acting ICE director issued new guidance last week limiting the ability of the agency's officers to arrest and remove aliens from the interior of the United States (as opposed to Border Patrol arrests at the border). It is gussied up in all sorts of reasonable-sounding language, but is really just a directive to officers to ignore most of their enforcement responsibilities, and to waste ICE resources it claims to be conserving.
Most ominously, however, it never explains what happens to officers who violate its diktats, creating a chilling effect on ICE enforcement, generally.
Three Guidance Directives in Just Over a Month
That guidance was set out in a memo from Acting ICE Director Tae Johnson, captioned "Interim Guidance: Civil Immigration Enforcement and Removal Priorities". I will refer to it as the "Tae Johnson memo", to differentiate it from then-DHS Secretary Jeh Johnson's November 2014 immigration "priorities" memo (commonly known as the "Johnson memo").
By my count, it is the third such guidance issued by the Biden administration in just over a month, the first being then-Acting DHS Secretary David Pekoske's January 20 memo captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities" (Pekoske memo), and a leaked e-mail, also from Johnson, that was revealed by the Washington Post on February 7.
I reported on the Pekoske memo on January 27, in a post captioned "The Dangerous Gambit of the Enforcement Moratorium and Amnesty Legislation: No one wants to negotiate with a gun to their head", and on the leaked E-mail in one captioned "Biden's DHS Is Abolishing ICE Without Abolishing ICE: Officers 'now being told to enforce nothing'". The three are not terribly different in substance from one another, so you likely know what I think of Director Johnson's latest work.
Here is how the Tae Johnson memo will be reported in most media outlets: It directs ICE officers to use their "limited resources" to go after aliens who: are threats to the national security; entered the United States on or after November 1, 2020; or have been convicted of aggravated felonies or are gang members. It is actually, unfortunately, much more restrictive and confusing than that, as I will explain.
The "Limited Resources" Excuse for Non-Enforcement, Again
"Limited resources" is an oft-heard excuse for not enforcing the immigration laws. The Johnson memo used it twice, and its predecessor, 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") used as a pretext the fact that "ICE ... only has resources to remove approximately 400,000 aliens per year."
"Limited resources" is used six times in the Tae Johnson memo, or just less than one time per page, making you think that ICE officers are as exhausted by the purported Trump "deportation frenzy" as the Kansas City Chiefs offensive line was in the fourth quarter of this month's Super Bowl, and welcome the break.
Not likely, if the complaints that I am hearing are accurate. Frustration and despair is more like it. Fear is likely right around the corner.
In FY 2011, when Morton said the agency could only remove 400,000 aliens per year, ICE had 20,142 employees and a budget of $5.342 billion. That year, it 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 — according to Morton — by 94 removals).
In the last pre-pandemic year of FY 2019, on the other hand, ICE had a budget of more than $6.9 billion, and 23,439 employees. Using Morton's 400,000 removal ceiling, and given the fact that ICE's budget was 29 percent higher, it should have been able to remove about 515,900 aliens.
But ICE actually removed fewer aliens in FY 2019 than it had in FY 2011. Many fewer. That year, the agency removed just 85,958 aliens from the interior, and another 181,300 aliens who had been arrested by CBP at the border, for a total of 267,258 removals total.
In other words, ICE had more money and more employees in FY 2019, and yet removed a mere 67.3 percent as many aliens as it had in FY 2011. And that was during a period when, as the Post described it on February 7, the then-Trump administration "afforded wide latitude" to the agency. By contrast, under Biden, ICE will be "a more restrained agency", again per the paper.
Handcuffing Immigration Enforcement and the Presumption of Priorities
"More restrained" is one term, assuming that handcuffs and shackles on ICE are forms of restraint. What the Tae Johnson memo is seemingly attempting to do is all but strangle ICE immigration enforcement.
But what, you might say, about those national security risks, recent illegal entrants, and aggravated felons and gang members that are priorities under the Tae Johnson memo? We want those people out of the United States! Well, the devil is in the details.
You see, each is only presumed to be a "priority" for removal (emphasis in the original).
The Second Priority — with Fewer Restrictions — First
Oddly enough, there are fewer modifiers and conditions on ICE's ability to arrest and remove aliens who entered illegally on or after November 1, 2020 ("Priority Category 2") than on the other "priorities". Again, ICE officers are warned that those aliens are only presumed to be a priority for removal, but there are no specific restrictions on arresting, detaining, and removing them.
Why would the Biden administration want to place fewer restrictions on ICE arrests of recent illegal aliens? I am not privy to its discussions, and its reasoning is not explicitly stated, but likely because it does not want a surge at the border of illegal migrants drawn by then-candidate Biden's rhetoric on the campaign trail, which my colleague Todd Bensman has described as the "Biden Effect".
Such a surge would endanger the prospects of Biden passing his massive amnesty plan. Most Republicans (and a few Democrats) would vote against legalizing aliens already here illegally when more are pouring across the border. As I have explained, in a closely divided Congress, every vote counts.
The First Priority — Which Requires a Lot of Interpretation on the Fly
Aliens are presumed to be enforcement and removal "priorities" under "Priority Category 1: National Security" if they engaged in or are suspected of engaging in terrorism, terrorism-related activities, espionage, or espionage-related activities, or where enforcement is required to otherwise "protect the national security of the United States".
ICE officers are told that the term "terrorism or terrorist-related activities" is to be applied consistent with the definitions of "terrorist activity" and "engage in terrorist activity" in the INA (which is rather broad), and that "espionage" has the same meaning as "is generally applied in the immigration laws".
Respectfully, I was the acting head of the INS's National Security Law Division (and had jurisdiction over terrorists, spies, and national-security risks), and I never bothered to figure out how "espionage ... is generally applied in the immigration laws". If you were removable and a spy, you got picked up and removed if I had any say. Pity the poor ICE officer that has to figure out this one.
Speaking of, when determining whether the apprehension or arrest of a removable alien is "otherwise necessary to protect the national security of the United States", that ICE officer must assess whether the alien "poses a threat to United States sovereignty, territorial integrity, national interests, or institutions". Seriously, that is what the Tae Johnson memo says.
How exactly is anyone, short of President Biden and possibly Secretary of State Tony Blinken, supposed to know whether an alien "poses a threat to United States national interests"? Can you tell me dispositively what those interests are?
And, doesn't every alien unlawfully present pose a threat to the nation's sovereignty and territorial integrity? Plainly, Director Johnson envisions a narrower interpretation, however, but I have no idea what the parameters are. More time will be spent angsting over whether to arrest aliens on national security grounds than will be spent actually, you know, arresting them.
No officer of the United States should be placed in the dilemma between keeping his or her job and protecting national security.
The Third Priority — Presumptions with a Lot of Considerations, including of "Mitigating Factors"
That brings me to "Priority Category 3: Public Safety". It consists of aliens convicted of aggravated felonies and gang members, who are "presumed to be a public safety enforcement and removal priority". (Emphasis in original.)
I will start with the gang members. Basically, the Tae Johnson memo rolls back some convoluted logic in his earlier e-mail about tattoos, and appropriates (without attribution) a similar prioritization from the 2014 Johnson memo (where they were then in "Priority 1").
And, unlike language in that e-mail that treated some aggravated felons differently from others (as I noted in my post on that e-mail), all aliens convicted of an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act (INA) are facially to be treated the same as it relates to enforcement and removal.
"Facially" is the key word, and where the emphasized "presumed" comes into play.
You see, the Tae Johnson memo states that, in determining whether an alien "poses a threat to public safety", ICE officers "are to consider the extensiveness, seriousness, and recency of the criminal activity." But, that's not all.
Those ICE officers also have to consider other "mitigating factors", which include, but are "not limited to" the following: "personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available".
Undefined "mitigating factors" are an invitation to non-enforcement in and of themselves. I really cannot think of any other factors that aren't included, but (again) pity the poor ICE officer who has the same mental block, and fails to consider some other arbitrary subjective issue or concern for non-enforcement.
The listed mitigating factors are not much better, though. Take "sexual abuse of a minor", which is a listed aggravated felony in the INA. Should I, if I were an ICE officer, arrest an alien convicted of that crime?
What if the alien has kids of his own (family circumstances), coaches little league (ties to the community), has recently become a youth minister at his church (rehabilitation), and is diagnosed with "Pedophilic Disorder" (as recognized in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, or "DSM-5") (health and medical factors)?
Those could all be markers that the alien is a danger to reoffend (because they would give the alien the opportunity to do so), but they are also mitigating factors, as per Director Johnson. Note that this alien is not likely to be eligible for any relief, but that is not a determinative factor under the Tae Johnson memo.
It gets more complicated if a year, five years, or a decade pass between the date of conviction and the time that the alien shows up on ICE's radar.
I need no citation for the fact that sexual predators use various ploys to dissuade their victims from telling anyone about such abuse, and years can go by before another survivor comes forward. We know that our hypothetical criminal has been convicted, but there is no good way to tell whether he has reoffended in the interim.
The INA has no "statute of limitations" when it comes to removing aggravated felons, but the Biden administration is tacitly attempting to craft one where Congress has refused to act.
Similarly, the Tae Johnson memo states: "This criterion tracks Congress's prioritization of aggravated felonies for immigration enforcement actions." That statement is wrong as a matter of law. Congress does not prioritize anything when it comes to the grounds of removability in the INA.
The various grounds may have different ramifications (aliens convicted of aggravated felonies are ineligible for most forms of relief and are subject to mandatory detention, for example), but Congress never tells ICE (or any other agency) in the INA (or anywhere else) that the arrest and removal of one removable alien takes priority over any other.
Attempting to put congressional imprimatur on what is a simple hobbling of immigration enforcement is just wrong.
Candidate Biden's Threats, and the Chilling Effect of What the Tae Johnson Memo Doesn't Say
In any event, as I noted, pity the poor ICE officers who actually have to implement this thing. Why do I say that? Because there are no listed consequences for any officer who fails to apply these "priorities" correctly.
That would normally be considered a good thing, which would make a bad memo better. But given then-candidate Joe Biden's statements on the campaign trail, if I were an ICE officer, it would fill my heart with dread.
Last January, Biden stated during a forum in Des Moines, Iowa, that he would "hold ICE agents accountable if in fact they stepped over [his] executive orders". He continued: "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."
Again, no citation is needed for the statement that no government employee wants to get fired. But, as that passage shows, Biden has previously threatened to fire ICE officers who transgressed his mandates. Does that threat lurk under the Tae Johnson memo? Unknown, but the chilling effect is significant.
An Onerous "Preapproval" Process to Arrest and Remove Other Criminals
I will note, by the way, that ICE officers can arrest aliens with other convictions (including non-felonies, presumably), after receiving "preapproval" from a field office supervisor. That requires an officer to comply with an onerous review process that involves sending a "written justification" through the dreaded "chain of command".
Director Johnson states (with a straight face, again presumably) that such "written justification" must explain "why the action constitutes a justified allocation of limited resources" (those words, again), apparently oblivious to the fact that the whole process he requires involves an unjustified expenditure of such resources.
Simply put, there are only so many hours in a day, and every one spent writing needless pleas to his or her supervisors is one an ICE officer does not spend on the street.
The Dangers of Non-Enforcement
There is more in the Tae Johnson memo, but I will leave it there.
This would all be darkly humorous if it weren't so frightening. There are bad people in this world who pose a threat to this country, and bad people here who want to harm the community or individuals therein. Not all, or even most, but some. Stopping them just got a whole lot harder.