Recent disclosures by U.S. Immigration and Customs Enforcement (ICE) that hundreds of thousands of criminal immigrants are at large in the United States raise the question of why the Biden-Harris administration isn’t doing more to remove them. Increasing deportations is a necessary part of fixing what Vice President Kamala Harris refers to as “our broken immigration system.” She is right to describe it that way. But the administration in which she serves was the one to break it, not least by impeding ICE deportations.
Currently, about 1.3 million aliens under final orders of removal — those who have received due process and been ordered deported — are on ICE’s “non-detained docket” of 7 million individuals. These individuals include criminal aliens, whom Congress has directed ICE to detain and remove. But ICE can’t remove many of them because they’re from so-called recalcitrant countries — nations that refuse to provide the U.S. government with the travel documents it needs to facilitate the return of their nationals. The Supreme Court has held that, with only narrow exceptions, even detained criminals due to be deported must be released after six months absent a “significant likelihood of removal in the reasonably foreseeable future.” If ICE can’t get their travel documents, there’s no likelihood of removal.
Fortunately, Congress gave the Department of Homeland Security (DHS) a tool to force recalcitrant countries to comply. Unfortunately, the Biden-Harris administration won’t use it. Under section 243(d) of the Immigration and Nationality Act (INA), once DHS notifies the State Department that a foreign country “denies or unreasonably delays” the return of its nationals, the secretary of state must “order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both,” to nationals of that country. The George W. Bush and Obama administrations used that authority sparingly, each restricting visa issuance to just one country in order to force compliance. As my colleague Mark Krikorian recently noted, “Trump made much wider use of it, and got results.”
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[Read the rest at National Review.]