On October 4, I analyzed Biden administration directives gutting ICE immigration enforcement. Since then, the Biden administration announced it will halt ICE worksite enforcement efforts, furthering this effort. It was the latest diktat from DHS Secretary Alejandro Mayorkas, “Enforcement Actions in or Near Protected Areas”, that really gave up the game, however. The administration is attempting to create a de facto amnesty for the vast (vast) majority of criminal aliens in the United States, using state laws protecting children from drugs as a guide.
Jon Feere’s Take
My colleague Jon Feere dissected those most recent guidelines (which were issued on October 27) in a November 1 post captioned “Biden Admin Turns Countless Locations Across the Country Into Safe Spaces for Criminal Aliens: Playgrounds are now sanctuaries for illegal-alien sex offenders”. He explained:
What used to be safe spaces for vulnerable members of society have been transformed into safe spaces for violent offenders. This new policy prohibits even basic surveillance of a criminal alien suspect who happens to be in or near so-called “protected” areas. These locations are mini sanctuaries for criminal aliens who are now “protected” from federal law enforcement officers at U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).
Why would Mayorkas propose creating “mini sanctuaries” for rapists and murderers? Feere posits that “shielding criminal aliens from the law is the top priority” for the Biden administration, and that these restrictions further that effort. If you review the October 27 guidelines, it is difficult to disagree with that assessment, and reference to state law proves it to be true.
Mayorkas’s Faux Maudlin Tone
Before I explain, however, let me first note that the secretary veers into the faux maudlin in that memo, stating:
It is because of the profound impact of our work that we must consider so many different factors before we decide to act. This can make our work very difficult. It is also one of the reasons why our work is noble.
One can almost picture Mayorkas stiffening his lip as he writes those words, drawing a carefully ironed, brilliantly bleached monogrammed handkerchief from the breast pocket of his expertly tailored bespoke suit to daub away a manly tear.
Of course, he does not consider ICE’s work to be “noble” in the least. That word is defined as “having, showing, or coming from personal qualities that people admire”. He hates the fact that ICE officers remove aliens, as that guidance reveals.
The Insidious Passage
Want proof? Three paragraphs after Mayorkas makes that factitious assertion, he states:
We can accomplish our enforcement mission without denying or limiting individuals’ access to needed medical care, children access to their schools, the displaced access to food and shelter, people of faith access to their places of worship, and more.
You need to read that passage carefully to understand how insidious (to say nothing of insipid) it is, and how much it reflects Mayorkas’s disdain for immigration enforcement.
First, the insidious part. In the Immigration and Nationality Act (INA), Congress mandates that the immigration laws be enforced, period, regardless of whether an alien facing removal will have to seek medical care elsewhere, change schools, get a new job or house, or find a new place of worship.
In fact, once aliens are removed, they must do all those things. It is baked into the removal scheme.
Second, the disdain. As the Supreme Court has held, an “order of deportation is not a punishment for crime”, but rather “a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government ... has determined that his continuing to reside here shall depend.”
In this context, the purpose of removal is not to punish aliens by forcing them to seek medical care elsewhere, find new schools for their kids, get new houses and jobs, and find new places of worship, but rather those are the inevitable costs of being removed from the United States.
Mayorkas either ignores or is ignorant of that fact, but he implicitly castigates the ICE officers who enforce the INA, and thereby impose those consequences on removable aliens. Worse, however, he is attempting to create an enforcement scheme in which those consequences are avoided by inflating the “protected areas” that are off limits to ICE officers — which will lead to no enforcement at all.
ICE October 2011 “Sensitive Locations” Memo, and Mayorkas’s Expansion
ICE officers have been required to obtain pre-approval to enforce the INA at certain protected areas since October 2011, when then-ICE Director John Morton issued a memo to that effect. His list included schools, hospitals, places of worship, funerals, weddings, other religious ceremonies, and (oddly) public demonstrations.
Mayorkas expands these restrictions, as Feere explains, to add areas “near” playgrounds, bus stops, rec centers, domestic violence shelters, food banks, pantries, and various other locations.
The secretary admits that there is no definition of “near” in this context, but asserts: “A variety of factors can be informative, such as proximity to the protected area, visibility from the protected area, and people’s behavioral patterns in and around the protected area.” Respectfully, that explanation makes the word vaguer, not clearer.
The “Rosary” Exception that Makes the Universe a “Protected Area” from ICE Enforcement
Significantly, this list includes places “where a ... rosary ... occur[s]”. Not only is that bad grammar (Rosary is capitalized, and Rosaries are “prayed”, they don’t “occur”), but it shows an unconscionable ignorance of the practices of the nation’s 51 million Roman Catholics, coupled with an expansion of ICE “no-go” zones to the universe as a whole.
I am a Catholic and own several Rosaries, and they were regular fixtures at the prison where I served as an immigration judge. Some Catholics pray the Rosary (a series of prayers) daily, others only when deeply troubled, and many not at all.
The point is, however, that “a [R]osary” can “occur” anywhere. Given the fact that Mayorkas’s memo restricts ICE “surveillance” in areas, how would any officer know that a Rosary was being, or could be, prayed there? Does that sacred object now carry the same power to daunt ICE officers that garlic possesses to defend against vampires in ancient lore?
Perversion of State Laws Protecting Children from Drugs
The insidious nature of that guidance, however, only gets worse, because it perverts state laws that protect children from drugs into a federal policy that shelters criminal aliens.
That is because it closely tracks “drug-free zone” laws, which enhance the penalties for drug trafficking and/or possession, on the books in all 50 states and the District of Columbia. As the Sentencing Project (which opposes such laws) explains:
The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks.
Like the Mayorkas restrictions, those drug-free zones include “schools, school buses ... public parks [and] churches” (Illinois); day care centers (Louisiana); and rec centers (Utah). No mention in any of hospitals, food banks, or domestic violence shelters (added by Morton and/or Mayorkas).
Many — progressives, moderates, and conservatives — have begun to rethink those zones, not least because they “are so extensive they aren’t effective in moving drugs away from children”.
One analysis done in Connecticut showed that 94 percent of residents in Hartford, 93 percent in New Haven, and 92 percent in Bridgeport live in areas with such sentencing enhancements (which include public housing, not on Mayorkas’s list).
Logically, Biden’s policy people are aware of those issues, which means Mayorkas’s list is deliberately expansive, all the better to (1) make it harder for ICE to arrest illegal aliens and, thus, (2) create sanctuary zones in major metropolitan areas. The “Rosary” exception makes the policy universal.
“Protected Areas” Guidance Only Protects Terrorists, Spies, and Serious Criminals
It only gets worse, however, because this “protected areas” guidance is to be applied in addition to, not in lieu of, Mayorkas’s earlier ICE enforcement restrictions.
As explained in that earlier post, Mayorkas restricted ICE’s “priorities” for immigration enforcement in a September 30 memo to three groups: Terrorists and spies; aliens who have engaged in “serious criminal conduct”, and recent illegal entrants.
ICE officers can act against other removable aliens, but must go through a review process so restrictive I described it as “as non-enforcement through micromanagement”.
Thus, the only aliens who are protected under this perverse game of “tag”, in which vast swaths of areas are “safe zones” where they cannot be touched (assuming they failed to bring a Rosary), are spies, terrorists, criminals, and those who entered illegally after October 31, 2021.
Given that there is no real way for ICE officers to know who entered illegally, as a practical matter the latest guidance exists only to protect hard-core criminals and national-security risks.
Conclusion: The Topsy-Turvy World of Biden Immigration Enforcement
Why? Because, as the Washington Post has explained: “ICE under President Biden is an agency on probation”, for no greater offenses than enforcing the INA and having the favor of Donald Trump.
That is how topsy-turvy immigration enforcement has become under the Biden administration: ICE officers charged with enforcing the law are treated as criminals on probation, and state laws protecting children from drug dealers are now being used as a template to protect real criminals (and spies and terrorists) from removal.