When DHS Secretary Alejandro Mayorkas issued his September 30 memo, “Guidelines for the Enforcement of Civil Immigration Law”, it was the latest step in an eight-month effort by the Biden administration to dismantle immigration enforcement. The ultimate outcome is almost definitely not going to be the one that “progressives” apparently guiding Biden immigration policies have planned.
In that memo, Mayorkas reviews the current immigration landscape and essentially throws up his hands. Noting there are “more than 11 million” removable aliens in the United States, he asserts that DHS does “not have the resources to apprehend and seek the removal of every one of” them, and then bars ICE agents from enforcing most U.S. immigration laws.
I have never been an alarmist when it comes to the number of illegal aliens in the United States, and have used the 11.3 million number for years. Aliens come, go, legalize, and die, and so the number is always in flux.
As more than 1.472 million aliens have been apprehended entering illegally at the Southwest border in just FY 2021, however, I am not so sure that 11.3 million figure is correct anymore.
But who cares? Even if there were 14 to 20 million aliens here who either came illegally, entered legally and overstayed, or entered as legal immigrants and then committed a removable crime, the Immigration and Nationality Act (INA) is written in mandatory terms and thus requires DHS to at least try to remove them all.
There are two reasons for that rule. First, the law is the law and is supposed to be enforced. Drunk drivers flood American roads very New Year’s Eve and Fourth of July (to name two holidays), and their numbers far exceed the number of state and local cops who can arrest them all and cells to detain them.
Drunks don’t get a holiday from enforcement for those reasons on December 31 or July 4, however. Neither do the cops.
That leads me to the second reason. State troopers, local police departments, and county sheriffs redouble their efforts at DUI enforcement on those dates because doing so dissuades other would-be drunk drivers. The same is true of immigration enforcement.
If DHS refuses to try to apprehend all aliens who have entered illegally or overstayed nonimmigrant visas, nothing — and I mean nothing — will dissuade would-be illegal entrants and overstays. That makes the job of Border Patrol agents and CBP officers at the ports even more impossible.
Incredibly — and in my opinion, despicably — such non-enforcement restrictions are what Mayorkas is placing on CBP and ICE officers and agents. Here is how he puts it: “The fact that an individual is a removable [alien] should not alone be the basis of an enforcement action against them.”
That is reprehensible. In this Republic, government’s power comes from the consent of the governed — that is, the citizens of the United States. This distinguishes the United States from monarchies, where the monarch holds complete power and government action is taken in the name of the crown.
Here, the people exercise their power through their elected representatives (that’s why the House of Representatives is called the “People’s House”). Those elected representatives wrote the removal provisions in the INA.
But now, the Senate-confirmed but unelected Mayorkas has decided that he simply doesn’t care what the people want, let alone what they think. He (or more accurately, whoever is calling the shots for the Biden administration) will decide which aliens stay and which go.
How many of the “more than 11 million” removable aliens in the United States will actually go? Not many, and not even many criminal aliens. Mayorkas imposes crushing requirements that ICE officers must comply with to even commence cases, let alone remove, aliens.
As noted, Mayorkas blames “limited resources”. That has been used as an excuse for immigration non-enforcement since 2011, when President Obama’s ICE director, John Morton, issued the first restrictions on his officers to limit removals.
Limited resources also featured prominently in a November 2014 memo issued by Obama’s DHS secretary, Jeh Johnson, that placed even more burdens on ICE enforcement, and this canard was the cornerstone of immigration-enforcement restrictions that were implemented in January and February, and that predated the Mayorkas memo.
As I explained in a February post, as bad as the Obama restrictions were, they were worlds better than what the Biden administration has cooked up.
It is true that all resources are limited, but how can I be sure that the “limited resources” trope is a strawman in Mayorkas’s guidance?
Because that memo doesn’t simply limit enforcement against certain aliens based on their grounds of removability (I could understand going after murderers and rapists first), but rather further limits enforcement based on the unique circumstances of the criminal aliens themselves.
Before taking an enforcement action, ICE must consider aliens’ age; how long they’ve been here; if a mental condition contributed to their criminality; if they were the victim of or witness to a crime themselves; the effect removal will have on them or their families; whether they’re eligible for relief; and whether they or an immediate family member were in the military or worked for the government.
The Fifth Circuit, in narrowing an injunction of prior Biden criminal alien guidance in September, put a lot of emphasis on the fact that under that guidance, “arrests of those with aggravated felonies ... are up by roughly 2,000 from the prior year; they now account for one in five arrests.”
That’s great, but the circuit court held that these facts alone justified Biden’s policies. It failed to consider, however, whether enforcement limitations focused on an alien’s personal circumstances will unduly waste ICE’s “limited resources”, as officers must consider issues having nothing to do with whether the alien is removable or poses a threat to the public safety, or the immigration system as a whole.
That said, these restrictions will negatively impact both public safety and immigration generally.
With respect to the public safety impacts, even if you accept the proposition that most illegal aliens don’t commit crimes, illegal criminal aliens, by definition, do, and criminals reoffend. According to a 2018 DOJ study, 44 percent of prisoners released in 2005 were arrested at least once within a year, 68 percent within three years, 79 percent within six, and 83 percent within nine.
Under the Mayorkas guidance, ICE officers can only consider an alien’s criminal history, ignoring the future crimes that alien is likely to commit. As many criminals are “upward offenders”, those future crimes will be even worse, and more victims will suffer greater harm.
Turning to the impact of this guidance on the immigration system as a whole, if foreign nationals can enter the United States illegally or overstay with few if any consequences, more foreign nationals will do so, taxing CBP’s equally “limited resources” even more.
Which brings me to the border, because interior enforcement is not the only area where Biden’s immigration policies are having a deleterious impact.
Joe Biden promised in December that he would create “guardrails” to prevent chaos at the border before reversing his predecessor’s initiatives, a vow he broke as he took office. He ham-handedly ditched Trump-era policies that had, successfully, brought “operational control” to the Southwest border, without implementing his own.
“Doing nothing” to prevent illegal entries is itself a policy, and “nothing” is what the president has done to respond to the flood of illegal migrants pouring across the Southwest border, all but unabated, since February.
The administration blames everything but itself for the ensuing disaster there (including poverty, corruption, crime, violence, weather, and global warming abroad, and most recently, Border Patrol agents themselves).
All but the latter may play a role, but each factor has been engrained in source countries for decades. In August 2019, fewer than 51,000 illegal migrants were apprehended at the Southwest border. That number almost quintupled by August 2021, when apprehensions reached more than 195,000.
Even assuming the Covid-19 pandemic wrecked economies abroad (as it did ours), the main difference between the two Augusts is the utterly divergent border policies of Trump and Biden, respectively.
This Biden nonenforcement regime has almost definitely been by design. It was clear from Biden’s campaign website and policy papers that the former vice president took a dim view of immigration enforcement.
Now that he is in office, Biden is systematically dismantling immigration enforcement in the United States. The Mayorkas memo is the most recent and blatant example of this, but it is just the culmination of an eight-month-long process.
You can see the consequences in the pictures from the squalid camp migrants erected on the banks of the Rio Grande in Del Rio, Texas, two weeks ago. The same effect is felt daily in the interior of the United States as tens of thousands of criminal aliens who should have been removed stalk communities nationwide, free of apprehension. That effect is more diffuse, however, and therefore ignored.
None of this will end well. The ensuing de facto amnesty will be short-lived, unless congressional Democrats can convince the Senate parliamentarian that they should be allowed to pass sweeping “reform” through a back-door legislative process known as “reconciliation”.
Even then, however, the harm to our immigration system will be permanent. On October 1, I reported that Obama was attempting to be the voice of reason on immigration. He asserted that “Immigration is tough”, and that while we “want to help others” as a people, “we’re a nation state” with borders that must be enforced.
I explained that Obama made those statements because he cares about the welfare of this country and his party, but part of it likely had to do with the fact that he (like me) cares about the future of legal immigration, too.
More than 27 years ago, Barbara Jordan, civil rights icon and then-chairwoman of President Clinton’s Commission on Immigration Reform, concluded:
If we cannot control illegal immigration, we cannot sustain our national interest in legal immigration. Those who come here illegally, and those who hire them, will destroy the credibility of our immigration policies and their implementation. In the course of that, I fear, they will destroy our commitment to immigration itself.
What would Jordan have made of Biden’s border fiasco, to say nothing of the Mayorkas memo, all of which threaten the outcome she so feared — unlimited immigration preceding no immigration at all?
In economic policies, the Biden administration and its allies are acting like millennialists of old, believing that the end is nigh and long-range planning is therefore useless. The same is the only logical explanation for their immigration policies.
Millennialism, however, has always proved itself wrong, and will again. The economy will tank, disasters (both natural and manmade) will occur, and the humanitarian impulses Obama describes will wane.
When that happens (and it will), poorly thought-out immigration policies like these will be blamed. But they won’t draw all the fire — “immigration” writ large will, too. If you want to scuttle legal immigration, the Mayorkas memo would be the best place to start.
Mayorkas’s directive to ICE officers that enforcement actions should not be directed against aliens just because they are removable disregards, and thus disrespects, the will of the American people. It is also a policy bound to achieve the exact opposite of what it aims to do.