If DHS Can’t Be Required to Enforce the Laws, Why Not Refuse to Arrest ‘Give-Ups’?

Or ‘suppose they made an illegal entry and nobody came’ — to apprehend them, that is

By Andrew R. Arthur on September 28, 2023

The Supreme Court recently ruled that neither it nor the inferior courts can require the administration to enforce the immigration laws, regardless of how blatantly it refuses to do so. That includes border enforcement. Many if not most of the migrants swamping Border Patrol are so-called “give-ups” — aliens who enter illegally and turn themselves in, safe in the likelihood they’ll be released. So, why don’t agents just stop arresting those give-ups, and focus on those aliens who don’t want to be caught, defined as “got-aways”? Seriously — suppose they made an illegal entry, and nobody came.

U.S. v. Texas. In September 2021, DHS Secretary Alejandro Mayorkas issued a memo titled “Guidelines for the Enforcement of Civil Immigration Law”. It listed a series of factors immigration officers and ICE attorneys must consider before investigating, questioning, arresting, detaining, prosecuting, or removing facially removable aliens (collectively known as “enforcement action”).

While that memo claimed to not “compel a specific action to be taken”, it implicitly obstructed ICE’s enforcement of congressional mandates in the Immigration and Nationality Act (INA) by explicitly stating that an alien’s unlawful status alone would not compel any DHS enforcement action.

Beginning in April 2021, Texas and Louisiana sued the administration in federal district court in Texas v. U.S., first to challenge the legality of two earlier non-enforcement memos and then to contest the legality of the Mayorkas guidelines. The states asserted that those memos violate both the INA and the Administrative Procedure Act (APA), which requires agencies to follow certain steps when taking agency actions, including substantive policy changes.

In June 2022, federal district court Judge Drew Tipton vacated the Mayorkas memo, and both the Fifth Circuit and the Supreme Court denied the administration’s request for a stay of that order in July.

The justices did, however, grant the government’s request for certiorari before judgment, bypassing circuit court appeal of Judge Tipton’s order so that the justices could hear the case, now captioned U.S. v. Texas, directly.

On June 23, 2023, the Court issued its opinion, reversing Judge Tipton’s order.

Justice Kavanaugh, writing for the majority, concluded the states lacked standing to bring that challenge, finding that they had failed to cite “any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions”.

Two passages in that opinion bear notice. First, Justice Kavanaugh noted that, “when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect”.

Second, he held:

this case raises only the narrow Article III standing question of whether the Federal Judiciary may in effect order the Executive Branch to take enforcement actions against violators of federal law — here, by making more arrests. Under this Court’s Article III precedents and the historical practice, the answer is no.

Section 242(b)(9) of the INA. Thus, under Texas, DHS is under no obligation to take any “enforcement action” — that is, to investigate, question, arrest, detain, prosecute, or remove any alien, and courts are powerless to force them to do so — meaning no litigant could do so, either. If it weren’t clear enough, however, Congress has settled the question with respect to aliens unlawfully present, including those border migrants.

Specifically, section 242(b)(9) of the INA states, in pertinent part:

Judicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. [Emphasis added.]

In Reno v. American-Arab Anti-Discrimination Comm. (AADC), Justice Scalia, writing for the majority, described that provision as the “zipper clause” in that it directed those questions of law and fact to the circuit courts on appeal.

At issue in AADC was the application of section 242(g) of the INA, which states, again in pertinent part:

Except as provided in this section and notwithstanding any other provision of law ... including ... any other habeas corpus provision ... no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

The parties in that matter had assumed that section 242(g) was itself a “zipper clause” providing for no judicial review of any issue unless section 242 specifically allowed it, based upon section 242(g)’s reference to actions “to commence proceedings, adjudicate cases, or execute removal orders”.

Justice Scalia corrected that erroneous assumption, explaining that in fact, what section 242(g) of the INA says:

is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." ... There are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.

Or, to apprehend an alien who has entered the United States illegally. Review of such decisions is available only under section 242(b)(9) of the INA, but if the alien were never apprehended, there’d be no “final order” to review.

The Facts on the Ground. That is the theoretical and legal part. Here are the facts on the ground, via a tweet from Jorge Ventura Media:

As you see, all those migrants are on the border side of the fence. They have already entered the United States illegally; they just haven’t made it to the interior side of the country, and likely wouldn’t if the Border Patrol wasn’t forced by the White House to let them in.

But that raises the question of why “nearly 1,000 migrants [are] waiting to turn themselves into Border Patrol”. Because they know that shortly after they do, they will be released into the United States, where they will be able to live and work indefinitely, if not forever.

You can see hundreds, if not thousands, of similar scenes in my colleague Todd Bensman’s reporting and on his X (previously Twitter) feed. More than 1.6 million got-aways have entered under Biden, but such “give ups” are the norm — not the exception.

But, as the foregoing explains, thanks to Texas and the INA nothing requires Border Patrol to open the fence and let them in to “apprehend” them. That would allow those migrants to stay — technically — in the United States illegally, for sure, but it would not allow them to go any further.

There may be solid humanitarian reasons for agents to take some of them into custody — unaccompanied alien children, families with children of tender years, and those in physical distress or requiring medical care. What reason is there, however, to apprehend a healthy adult who’s simply coming to work, or to avoid general conditions of illegality in a third country when Mexico is a suitable alternative?

Lest you think I have mischaracterized those migrants, here’s another tweet, this one from CBP itself:

If CBP knows most aliens “coming to our border are not eligible to remain in the United States”, why does it keep letting them all in? It doesn’t even have to apprehend them. This all raises an interesting point: suppose they made an illegal entry, and nobody came — to apprehend them, that is. The answer: nothing. Those migrants would probably just turn around and go back across the border.