The Left’s Demand for ‘Equity’ in Immigration Enforcement

The sprawling D.C. suburb of Fairfax County, Va., has an immigrant murderer problem: Three of the four individuals facing murder charges there this year are illegal aliens. Don’t tell Commonwealth Attorney Steve Descano, however, because he has bigger issues on his mind. You might be surprised to learn that “equity” is the common bond that ties Descano’s strict (and senseless) sanctuary policies, “open borders”, and the ongoing DHS shutdown together.

The “Why” Behind Biden’s Non-Enforcement Policies

The most common questions I was asked by reporters during the Biden administration all began with the adverb “why”: Why does Border Patrol keep allowing illegal migrants to cross? Why won’t agents detain them? Why is DHS Secretary Alejandro Mayorkas allowing illegal alien criminals to remain on the street?

“Prosecutorial discretion” was the excuse given for each of those policies — the non-deterrence and releases at the border and the refusals to take criminal aliens into custody — and the Bidenistas’ argument was that if the Immigration and Nationality Act (INA) allows DHS to prevent aliens from entering and to apprehend and detain removable aliens, it also allows DHS not to take those actions.

In that context, however, prosecutorial discretion is how Biden’s DHS implemented those policies, not the why.

The why can be found buried deep in a September 2021 document issued by the department, captioned “Significant Considerations in Developing Updated Guidelines for the Enforcement of Civil Immigration Law”, but better known (to the extent it’s known at all) as the “Considerations memo”.

It’s 21 pages long and reads like a bad senior-year sociology thesis, but if you go to the middle of p. 7, you’ll find the paragraph that explains all the rest:

On his first day in office, President Biden affirmed that "advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government." In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration's stated commitment to "advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality." [Emphasis added.]

“Equity in Contemporary Immigration Enforcement”

Keep in mind that while footnotes were omitted from that excerpt, none offers cites for the “scholars and professors” referenced who made those questionable observations.

The key points, however, appear to draw heavily on a 2018 law review article captioned “Equity in Contemporary Immigration Enforcement: Defining Contributions and Countering Criminalization”.

It rests on a few key (albeit overblown) arguments, including that the operation of current immigration laws “generates staggering inequities”, that “systems of criminalization” have had a heavy impact on “U.S. immigration processes”, and that “the criminal justice system disproportionately impacts people of color and those with limited financial resources”.

Overall, the authors concede they are attempting “to broaden what should be considered in weighing positive equities in the context of enforcement decisions”.

The Mayorkas Memo

Hold that last quote in mind as I explain that DHS issued the Considerations memo to explain the rationale behind a separate memo Mayorkas issued the same day, “Guidelines for the Enforcement of Civil Immigration Law”, which I have long referred to as the “Mayorkas memo”.

The Mayorkas memo created three “priorities” for immigration enforcement: “threats to national security” (spies and terrorists); “threats to public safety” (criminals); and “threats to border security” (recent illegal entrants).

The main focus was the second group, the threats to public safety, and in that portion of the guidelines the secretary ordered ICE officers and prosecutors to assess “the individual and the totality of the facts and circumstances” before taking “enforcement action”, i.e., investigating, arresting, detaining, prosecuting, or deporting an alien, regardless of the offense that alien committed.

Specifically, ICE was required to consider a series of “aggravating” and “mitigating” factors before taking any enforcement action, and to reassess those factors (mainly the mitigating ones) throughout the investigation, arrest, detention, prosecution, and removal process.

The authors of the law review article could have written the Mayorkas memo and, in fact, it would not surprise me if they weren’t at least consulted during the drafting process, so close are their faculty-lounge recommendations to the final product.

The Fairfax County Three

As noted at the outset, three illegal aliens are currently in Fairfax County detention awaiting prosecution for murder.

The first is Misael Lopez Gomez, a 28-year-old national of Guatemala who entered illegally in July 2023.

Gomez is charged with second degree murder and felony child abuse for allegedly beating his three-month-old daughter to death on March 30.

The second is another illegal Guatemalan national, Anibal Armando Chavarria Muy, 38, also charged with second degree murder, in his case after allegedly stabbing another individual “several times inside a home” in Fairfax on March 29. The victim later died.

The third is an alien I have referenced in the past, Abdul Jalloh, a 32-year-old national of Sierra Leone, yet again charged with second degree murder, in this instance for allegedly stabbing Fredericksburg resident Stephanie Minter, 41, to death at a suburban bus stop in February.

On April 1, DHS issued a public statement noting that ICE had issued a detainer for Gomez and asking Virginia Gov. Abigail Spanberger (D) not to release him from state custody, arguing: “This monster should have never been allowed in our country by the Biden administration. We need cooperation from sanctuary politicians to stop criminals from being released from jail to perpetrate more crimes and create more innocent victims.”

That came a day after ICE announced it had also issued a detainer for Muy and called on “Spanberger and Virginia's sanctuary politicians to not release” the Guatemalan “back into our communities”.

Why was DHS so concerned that Spanberger and other Virginia officials would ignore those immigration detainers and release aliens charged with heinous crimes back onto the streets? The rationale can be found in the following tweet, which was issued by DHS on March 3 in connection with the Jalloh case:

Steve Descano’s Campaign Website

Even under the sanctuary regime Spanberger has implemented since she became governor of the Old Dominion in January, Descano’s anti-immigration-enforcement policies stand out.

That month, the House Judiciary Committee wrote to the Fairfax commonwealth’s attorney to complain that his office “has routinely undermined the rule of law under the guise of safeguarding the public” by nixing his employees’ efforts to “assist[] federal agents with civil immigration enforcement”, barring Fairfax prosecutors “from sharing arrest information and immigration status details with federal immigration officials”, and banning his subordinates “from cooperating in the enforcement of federal administrative warrants for illegal and criminal aliens”.

That letter continued: “Your office also routinely fails to prosecute cases against criminal aliens, allowing them to reoffend and terrorize new victims.”

Lest you think the committee’s plaints are baseless, look at the following archived portions of Descano’s campaign website that the commonwealth’s attorney appears to have recently scrubbed after positions he took therein drew public scrutiny.

Under “Protecting Immigrant Communities”, for example, Descano wrote:

Steve’s office will take immigration consequences into account when making charging and plea decisions. Although prosecutors typically refer to immigration consequences as “collateral consequences,” avoiding the unnecessary destruction of families and communities will be a top priority for Steve as Commonwealth’s Attorney. Wherever possible, Steve will make charging and plea decisions that limit or avoid immigration consequences.

Thus, if you are a fourth-generation Virginian or simply a U.S. citizen who moved to NoVa and ran afoul of the law in the commonwealth’s most-populous county, expect to be treated much more harshly by Descano’s prosecutors than an alien — regardless of status — who arrived last week and committed the same offense.

Why? As Descano explains: “If two people commit the same crime, but only one’s punishment includes deportation, that’s a perversion of justice and not a reflection of the values of Fairfax County.”

In other words, prosecuting two criminals — one a citizen and the other an alien — for the same offense in an equally harsh manner wouldn’t be “equitable”, because only the alien would face removal from a country in which he has no right to reside.

Sound familiar?

That said, at least Descano is (kind of) honest about what he’s doing. Why won’t sanctuary politicos in cities like New York City, Chicago, and Los Angeles and states like California and Illinois allow ICE into their jails to take custody of violent criminals?

Because they too believe — in the clearest expression of “equity” possible — that it’s a “perversion of justice” to deport alien criminals, but not citizens who “committed the same crime”. The reason they won’t admit as much is because, unlike Descano, they understand how absurd such an admission would be.

“The Fear of Law Enforcement”

Not surprisingly, Descano gave away the game when he vowed to “work to create a smarter criminal justice system that will produce the just, equitable, and forward-looking Fairfax County we want”.

Probably, however, many in Fairfax County don’t “want” a two-tiered system of inequitable “equity” (especially when it’s their ox being gored), and thus Descano had to backstop his clear intentions by contending that impeding ICE somehow makes the community safer:

The fear of law enforcement that Donald Trump has fostered in immigrant communities does nothing but lead to increased crime. When communities are reluctant to seek out law enforcement help, those communities become high-value, low-risk targets for criminals. When entire communities are afraid to testify, dangerous criminals who should be incarcerated get put back on the street. Steve will do everything in his power to make his office a safe place for everyone, regardless of their immigration status.

The Center has long argued that there is no proof sanctuary policies like the ones championed by Descano do anything to make members of immigrant communities less reluctant to call the cops, and facts referenced in the House Judiciary Committee letter to the commonwealth’s attorney suggest the opposite is true.

The authors of that letter — Committee Chairman Jim Jordan (R-Ohio) and immigration subcommittee Chairman Tom McClintock (R-Calif.) — noted:

In one case involving a twice-deported illegal alien from Guatemala, prosecutors in your office “dropped his felony charge for allegedly strangling a woman in exchange for a guilty plea” to a misdemeanor offense. The criminal alien’s victim “feared for her safety and that of her children when she heard [the illegal alien] was back on the street so soon.”

Similar stories likely abound in the immigrant communities of Fairfax County, i.e., the places most alien criminals prey on most of their victims.

Ask yourself how likely you’d be to file a complaint with the cops if you knew local DAs were likely to give your violent assailant a light sentence and turn him back out into your community simply because he was an alien — even if you are an alien yourself. You’d probably “fear for your safety”, too, take your lumps, and keep your mouth shut the next time.

The DHS Funding Bill

Finally, dig through the talking points in defense of the current DHS shutdown and you will find the same demands for “equity” detailed in the law review article, that formed the bedrock of the Biden open-borders policies, and that motivate sanctuary prosecutors like Steve Descano.

Consider the following, from House Minority Leader Hakeem Jeffries (D-N.Y.) on CNN on March 10, as Jeffries lays out the case for refusing to fund ICE and Border Patrol: “This is a President who promised to go after the worst of the worst. Instead, ICE agents are targeting law-abiding immigrant families.”

Or this, from Sen. Durbin during a March 3 oversight hearing on DHS:

Secretary Noem has repeatedly claimed that the Department is arresting the “worst of the worst” and making American cities safer. In fact, less than 14 percent of immigrants arrested during Trump’s first year back in office had charges or convictions for violent criminal offenses.

Or this, from Senate Minority Leader Chuck Schumer on the Senate floor on February 2:

Republicans need to take a good look at what is happening around the country and realize, too, that it is time to rein in ICE’s abuses. We should be going after ‘‘the worst of the worst,’’ as the administration says, instead of unleashing fear and chaos on everybody else.

With due respect to Jeffries, Durbin, and Schumer, ICE isn’t “targeting” any alien Congress — that is, them — hasn’t told officers to remove.

But the real — and bigger — point each of them is making is that they refuse to fund DHS until Trump agrees to follow Biden and Mayorkas’s (and Descano’s) lead by implementing an equity-driven enforcement regime that focuses solely on the most serious public-safety risks and leaves every other illegal alien alone.

Back to Border Security

The problem is that border security — which politicians of all political stripes contend they sincerely and earnestly support — is impossible when equity-based factors drive immigration enforcement.

On March 26, liberal commentator Ruy Teixeira quoted self-described “center-left liberal” economist Noah Smith, who recently explained in a column with the subhead “In the face of Trump's authoritarianism, liberals need a principled movement and a plan for governance” that:

Every Democratic policy proposal I’ve seen calls to refocus immigration enforcement on those who commit crimes other than crossing the border illegally. But what about those who commit no such crime? If someone who crosses illegally and then lives peacefully and otherwise lawfully in America should be protected from deportation, how is the right-wing charge of “open borders” a false one?

Be Honest with the American People

Equity-premised schemes that require ICE officers to balance random aggravating and mitigating factors before taking enforcement action against any alien are the definition of “open borders”, because they grant de facto amnesty to anyone who isn’t “the worst of the worst”.

If de facto amnesty is what congressional Democrats are demanding, they should, like Fairfax County Commonwealth’s Attorney Steve Descano, state it plainly and let American voters decide whether arbitrary concepts of what’s “equitable” in our society should be allowed to strangle ICE enforcement. Odds are the electorate is more skeptical than the faculty lounge.