DHS Secretary Alejandro Mayorkas recently issued new immigration-enforcement guidance, captioned “Guidelines for the Enforcement of Civil Immigration Law”. It’s the third such guidance that has emerged from the Biden administration in just over eight months and represents a further decline in respect for the immigration laws Congress has passed. In addition, it is a de facto amnesty that will make it harder for ICE officers to get criminal aliens off the street.
The Immigration and Nationality Act and Prosecutorial Discretion. The statutory basis for almost all immigration enforcement is the Immigration and Nationality Act (INA), passed originally in 1952 and amended more than 100 times since.
There is no argument that Congress has the sole initial authority to decide which aliens are supposed to be admitted, and which are supposed to be removed. As the Supreme Court explained in 1954:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.
That said, the executive branch retains “prosecutorial discretion” to determine which aliens will be removed.
All resources are limited, and some cases are truly deserving of administrative grace even though the offender is plainly guilty. In the immigration-enforcement context, the question is whether the alien is removable, and prosecutorial discretion can be exercised at any point in the process, from initial questioning to final removal.
Courts are generally reluctant to interfere with those prosecutorial decisions, but judicial patience is a finite resource, too. That is particularly true given the fact that, as the High Court held in 2012, states do not have the ability to enforce the immigration laws themselves, and rely on the federal government to do so.
When the executive branch refuses to enforce the immigration laws, courts have been increasingly willing to second-guess those decisions.
EO 13993. In Executive Order (EO) 13993, issued on his first day in office, President Biden terminated EO 13768, which had been issued by President Trump on January 25, 2017, to guide interior immigration enforcement.
EO 13993 also directed the DHS secretary (among others) to issue revised immigration enforcement guidance.
The Pekoske and Tae Johnson Memos. Biden needn’t have bothered, because that same day, Acting DHS Secretary David Pekoske issued a memo captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities" (the Pekoske memo).
It announced a 100-day review of DHS immigration-enforcement policies, as well as a 100-day hold on almost all removals from the United States (the latter was blocked by a federal judge and then expired).
Claiming "limited resources", the Pekoske memo narrowed immigration enforcement to three specified "priorities": spies, terrorists, and other threats to national security; aliens who entered illegally on or after November 1, 2020; and aliens released from incarceration on or after the date of that memorandum who had been convicted of aggravated felonies (as defined in section 101(a)(43) of the INA).
By its terms, the Pekoske memo was a stopgap placeholder until other immigration enforcement guidelines were issued by DHS.
Thereafter, on February 18, Acting ICE Director Tae Johnson issued such guidance, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (the Tae Johnson memo).
The Tae Johnson memo expanded ever so slightly on the class of aliens deemed enforcement priorities in Pekoske memo.
Spies, terrorists, and removable aliens who were not here on October 31 still made the list, but the February 18 guidance also included non-detained aggravated felons and certain gang members, if they “pose a risk to public safety”.
On August 19, in a suit filed by the states of Texas and Louisiana against DHS, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas issued an order enjoining restrictions in the Pekoske and Tae Johnson memos on immigration agents in their enforcement of the immigration laws against criminal aliens.
A month later, a three-judge panel of the Fifth Circuit narrowed Judge Tipton’s injunction. In its decision, the Fifth Circuit noted that new guidance would be issued by the end of September by DHS.
The court did not completely stay Judge Tipton’s order, however, demonstrating that the courts are willing to review such attempts at prosecutorial discretion to bar immigration enforcement. And the Supreme Court could still reverse the circuit court’s order.
The Mayorkas Memo. Which brings me to the new Mayorkas memo. Relying again on DHS’s prosecutorial discretion, it sets limits on which facially removable aliens DHS agents and officers are allowed to question, apprehend, detain, prosecute, and remove, but does so in a sneaky way.
Like the Pekoske and Tae Johnson memos, Mayorkas begins with terrorists and spies, and moves to aliens who pose a threat to public safety.
Unlike the prior two memos, however, the latest one does not limit the latter category to aliens who have been convicted of aggravated felonies, but instead focuses on aliens who have engaged in “serious criminal conduct”.
The gravity of the offense, its sophistication, the degree of harm caused, whether a weapon was used, and whether it is just the latest in a string of crimes all go into the determination of whether the latest offense is serious, and thus a “priority” for enforcement.
Even if an offense is serious, however, the secretary demands that officers and agents also consider certain “mitigating” factors before taking enforcement action.
Those mitigating factors include whether the alien is young or old; the time that has elapsed since the alien’s conviction (and whether that conviction was vacated or expunged); the alien’s length of presence in the United States; and whether the alien has a mental disability, was a victim of a crime, is eligible for protection or relief, or served, or has an immediate relative who served, in the military or government.
Those mitigating factors were also elements of the Pekoske and Tae Johnson memos, but that does not make them any better. Respectfully, who cares if an alien child sex offender is a 70-year-old diabetic whose son works for the local DMV? The INA doesn’t, and whether the alien is eligible for an immigration benefit or asylum is an issue for the immigration courts in removal proceedings.
Then, there are the recent border entrants. Again, they are priorities if they were apprehended entering on or after November 1, 2020 (a completely arbitrary date, as an aside), or who are encountered in the interior and determined to have entered on or after that day.
With respect to those aliens, the Mayorkas memo is worse than its predecessors, because it requires officers and agents to determine, again, whether there are “mitigating or extenuating facts and circumstances that militate in favor of declining enforcement action”.
Does that mean that there are certain illegal migrants whom Border Patrol agents must release because, for example, they have family in the United States already? What if the migrant is entering illegally to care for a child, or a disabled family member?
As bad as that is, the Mayorkas memo further requires “personnel” — including Border Patrol agents and CBP officers at the ports — to “evaluate the totality of the facts and circumstances and exercise their judgment accordingly”.
Does Mayorkas have any idea what Border Patrol agents do? How is a single agent who apprehends a group of 20 migrants in the middle of nowhere (which happens daily) supposed to “evaluate the totality of the facts and circumstances” of each before taking them into custody? Yet, that is what this memo requires.
Even if it were read, however, to simply mean that this determination should be completed by some agent, somewhere during processing of the alien, it would bring whatever immigration enforcement is currently happening at the border to a halt.
Because of the humanitarian and national-security disaster that the Biden administration has created through its feckless immigration policies, agents had to process more than 6,300 illegal migrants daily in August. That is more than six times the 1,000 daily apprehensions that Jeh Johnson, President Obama’s DHS secretary, explained in March 2019 would “overwhelm” this system.
That’s why Border Patrol agents have had to release migrants en masse with legally worthless “Notices to Report” (a system my colleague Mark Krikorian termed “essentially immigration enforcement by the honor system”) — agents don’t have enough time or space to properly process and detain all of them as the law requires.
Now, the Mayorkas memo is requiring those agents to ask illegal migrants about their entire lives, and the lives and occupations of their families in the United States. If that isn’t bad enough, the Biden administration is asking Congress to cut CBP funding by $467 million in the FY 2022 budget.
It’s enough to lead a more impetuous individual to ask: “Whose side is Mayorkas on?”
Mayorkas’s Attempts to Protect Non-Enforcement from Judicial Review. The Biden administration has learned from its court losses, however. The Tae Johnson memo required supervisory review before ICE officers could act against an alien not deemed a priority (including criminals), rendering it susceptible to court scrutiny. The Mayorkas memo is much sneakier.
Now, in the case of criminal aliens, ICE officers are required to go beyond simple convictions “or the result of a database search alone” (which will protect gang members), and instead “to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue.”
This may sound benign to those who have never dealt with criminal records, but to those who have, it’s a doozy. Most criminal aliens are removable based on state court convictions, and simply getting access to such files in a single query can be a challenge. Worse, many conviction records go to central repositories where they must be requested weeks in advance. Police reports are usually impossible to obtain.
Mayorkas was a federal prosecutor for 12 years, and he knows all of this. He can limit this requirement “to the fullest extent possible”, but he still is aware that what he is requiring is a fool’s errand.
It’s useless exercise, to boot — immigration courts won’t consider most of those records in making a deportability determination, and many immigration judges also are hesitant to give weight to them when making discretionary determinations for relief. And neither the INA nor even activist judges require such research.
It gets sneakier, however. The memo states: “The civil immigration enforcement guidance does not compel an action to be taken or not taken.” Oh, no, no, no — perish the thought.
Instead, it requires immigration-enforcement officers to receive “training” to make sure they follow the guidance, and then for a review process “to ensure the rigorous review of ... enforcement decisions throughout the first ninety (90) days of implementation of this guidance”.
If you have ever worked for a law-enforcement agency, you will recognize this as non-enforcement through micromanagement, and God’s mercy on the officer who screws up and arrests a criminal alien without running through the maze that Mayorkas has erected to reach the conclusion the secretary expects. That is the definition of a “chilling effect”.
I feel like I have already written some iteration of “it gets worse”, but the Mayorkas memo gets worse.
It requires a “a fair and equitable case review process” be created to ensure that aliens and their lawyers can have any enforcement decision reviewed. That is the implicit “supervisory” sign-off on any enforcement decision that the Tae Johnson memo explicitly required.
Understand the implications of that review process: Aliens are allowed to have lawyers argue that their clients should not have been questioned, arrested, detained, or prosecuted. And they can have an attorney during that process, but the American people are cut out of it entirely, and denied a right to counsel.
Under the system Congress has created in the INA, aliens have an opportunity to present their side of the case in immigration court. The alien can have a lawyer, but you get one, too. The Mayorkas memo, however, short-circuits that process in the case of almost every alien, and most criminal ones, too. Those cases never get to immigration court, because they are spiked from the get-go.
De Facto Amnesty for Criminals, a Danger to the National Security, and Less Secure Borders. This is a de facto amnesty for criminal aliens, and one that endangers the national security, as well.
Congress, in the INA, clearly states that certain criminal aliens are supposed to be removed. It provides them with the opportunity to apply for immigration benefits and relief, but if they aren’t eligible, they are supposed to leave.
I needn’t belabor the point that the Mayorkas memo — under the guise of “limited resources” — provides de facto amnesty to a wide swath of those criminal aliens, and to every alien who entered illegally or overstayed a visa (certainly those who did so before November 1, 2020) and who hasn’t committed a crime that is a removable offense. The INA says those aliens are supposed to be removed, too.
And there are two ways in which the non-enforcement regime in that memo endangers the national security.
First, most would-be terrorists have never committed any criminal offense — before, of course, they do. Under the Mayorkas memo, they’re free to live and work happily and plan whatever acts they want in the United States without the threat of ICE knocking at the door.
Second, without the threat of removal once here, there is no impediment whatsoever to a would-be terrorist trying to enter the United States illegally by evading apprehension at the border. Once they’re in, they’re in, and in the insanely unlikely event that they come onto ICE’s radar, they can send their lawyers to claim that they have “mitigating circumstances” and therefore should be left alone.
That is why the Mayorkas memo will make the border even less secure, too. If all that a foreign national must do to live and work freely in the United States is enter illegally and evade detection, more of them will do just that. That means that already strained Border Patrol agents will have to exhaust even more resources to try and catch them. Border security will just circle the drain from there.
Even if those aliens are caught, all they must do is assert that they were here in time for Halloween 2020 (or again, just send their lawyers instead to make that claim), and there will be no way for the ICE officer to prove otherwise, at least not without spending weeks researching the case.
Further Erosion of the Credibility of the Immigration System. As Barbara Jordan, civil-rights icon and chairwoman of President Clinton’s Commission on Immigration Reform explained in February 1995:
Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave. The top priorities for detention and removal, of course, are criminal aliens.
Mayorkas turns that on its head, all but ensuring that “those who should not be here” can stay, unbothered by pesky ICE officers asking troublesome questions — including removable criminals.
He and the rest of the Biden administration may believe that they are safeguarding removable aliens and immigration generally, but they aren’t, at least not in the long term.
By eroding the credibility of the immigration system, the Biden administration is all but ensuring that a future Congress and administration will pull the reins even tighter on the legal immigration system. When the American people see, thanks in no small part to this ridiculous guidance, that the immigration laws are not being enforced, there will be a backlash.
That is what happened in 1996 and following the terrorist attacks of September 11th. The laws got tougher because they weren’t being enforced. And the non-enforcement of the immigration system then was nothing like what is happening under Mayorkas’s watch.
To quote former President Obama, “Immigration is tough.” That means that those are charged with enforcing it must enforce it, not ignore Congress’s clear mandates as Mayorkas does in his non-enforcement memo.