On Thursday, four Texas sheriffs, their counties, and the Federal Police Foundation—which represents ICE officers—filed a complaint in federal court in the Southern District of Texas, seeking an injunction of Biden administration policies that are blocking enforcement of Congress’s mandates in the Immigration and Nationality Act (INA). They have revealed that child sex offenders—and other dangerous aliens—are being released back into the community, instead of being detained and removed.
Biden’s policies are primarily set forth in a memorandum issued by then-Acting DHS Secretary David Pekoske on January 20, captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” and a February 18 memo from Acting ICE Director Tae Johnson, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”.
I analyzed both extensively in a February post, but basically the January 20 memo established “interim enforcement priorities” pending the outcome of an ongoing policy review, and ordered an “immediate pause on removals . . . for 100 days.”
The “priorities” for immigration enforcement under that memo are extremely narrow: terrorists, spies, and other national-security risks; aliens apprehended entering illegally after October 31, 2020; and criminal aliens incarcerated on aggravated felonies.
Note that by “immigration enforcement”, that memo meant not just removals, but also questioning, stops, arrests, detentions, prosecutions, and paroles.
There was no real explanation in that memo for this policy, nor any consideration of the public-safety consequences that would result therefrom.
Nor was there any in the February 18 memo, which was largely a carryover of the January 20 one.
Among the differences in the latter memo were that a very limited number of gang members were added as ICE priorities for questioning, arrest, detention, and removal, and other aliens convicted of aggravated felonies were also included, provided that they posed a threat to “public safety”.
You might assume that every alien gang member and aggravated felon poses a threat to public safety, but if you did, you would be a bad fit for the Biden policy team.
That’s because in assessing whether a gang member or aggravated felon poses a threat to public safety, the immigration enforcement officer now also has to consider how recent the conviction was, the alien’s family and personal situation, family ties, and whether the alien is in poor health.
Oh, and any rehabilitation.
These stringent restrictions on enforcement also apply to agents and officers in placing detainers on currently detained or incarcerated aliens.
As the Texas complaint notes, under that February 18 memo, when it comes to non-priority aliens whom an ICE officer might encounter, the officer has two choices: “seek preapproval to take enforcement actions or take no enforcement action at all.” Good luck getting preapproval. That “preapproval” process—which includes reams of documentation and the dreaded “chain of command”—is itself onerous and time-consuming.
Critically, however, as the plaintiffs continue: “These options apply even where federal law makes detention and/or removal of the aliens mandatory.”
Specifically, section 236(c) of the INA requires ICE officers to detain and hold any alien who is released from criminal custody if the alien entered illegally and is removable on any of the criminal grounds of inadmissibility, or if the alien entered legally and is removable on most all of the criminal deportation grounds.
That means that ICE is supposed to arrest and hold almost all removable criminal aliens—not just those who have been convicted of aggravated felonies. And Congress did not give ICE discretion to release aggravated felons just because they have found religion, have kids, coach little league, or are sick.
Plainly, you might think though, DHS has applied these (facially illegal) restrictions in a commonsense manner, such that no objectively bad people could escape immigration enforcement. Unfortunately, that’s not the case, at least if the plaintiffs are telling the truth.
For example, the complaint explains that ICE officers were forced to lift a detainer that had been placed under the Trump administration on an alien who illegally reentered after deportation and who had been convicted of indecency with a child with sexual contact. Why? His conviction was too old, and ICE concluded he no longer posed a threat to public safety.
Consequently, the alien is back on the streets. But he is not the only one.
Other illegal aliens whose detainers ICE officers were forced to rescind committed crimes including (among other things) aggravated sexual assault on a child, aggravated assault with a deadly weapon, larceny, burglary, domestic violence, carrying a prohibited weapon, possession of various and sundry illegal narcotics, and driving under the influence.
Remember, these are illegal aliens who have no right to be here to begin with. Their crimes are just second (or more) additional strikes. But, those are just the aliens who already had pending detainers, because ICE officers have also been barred from arresting other dangerous criminal aliens who were not criminally detained.
For example, officers asked permission to arrest an illegal reentrant who had been convicted of alien smuggling and theft. That request was shot down by management.
Then there was the illegal reentrant with the conviction for sexual battery against a child. ICE officers filed the pile of paperwork required to arrest him, but—you guessed it—management said no.
As for new detainers, the complaint describes a preposterous case involving an alien—who had reentered after being deported twice—whom local cops tried to arrest for selling heroin.
That alien attempted to evade arrest by ramming his vehicle into the squad car, narrowly avoiding hitting a cop outside. When he finally was arrested, the suspect had a quarter pound of heroin in his possession, and a search of the suspect’s vehicle revealed a woman and baby in the back seat.
ICE officers asked for go-ahead to file a detainer on the twice deported (alleged) smack peddler who deliberately caused an accident while he had an infant in his car, only to be told “no”.
Only slightly less shocking was the case of the alien who illegally reentered after being deported four times. He had convictions for domestic violence, evading arrest, and multiple counts of driving under the influence.
After he was again arrested for DUI, and when ICE officers abased themselves to ask the powers that be to be allowed to do the job that they are getting paid to do (in this case, place a detainer so they could take the alien into custody when he was released), that request was denied.
That is not to say that all ICE officer requests are denied. On May 6, officers sought preapproval for an alien who had been arrested for rape of a child. That preapproval was actually granted-- 53 days later-- leaving an objective observer to ponder what exactly management needed seven weeks and four days to consider.
The Texas complaint also asserts that CBP officers have been “constrained from taking enforcement actions” against illegal aliens who are apprehended entering illegally. Here’s how.
Under section 235(b)(2)(A) of the INA, arriving aliens seeking admission (which includes aliens entering illegally) are supposed to be detained pending removal proceedings. As my colleague Todd Bensman has made clear on numerous occasions, however, that is not happening—few if any illegal migrants are detained.
As grounds for an injunction, the complaint alleges that DHS is violating sections 235(b)(2)(A) and 236(c) of the INA, as well as section 241(a) of the INA. That requires all aliens under a final administrative order of removal be removed within 90 days, and was one subject of a recent Supreme Court opinion and post.
The complaint also charges that the February 18 memo violated the Administrative Procedure Act (APA) in numerous ways.
First, as noted, it violates three separate federal statutes, which is (logically) barred by the APA. Second, it is a “rule” that was issued without complying with APA “rulemaking” requirements. Third, it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “in excess of statutory jurisdiction, authority, or limitations.”
Finally, the complaint alleges that the February 18 memo violates Article II, section 3 of the U.S. Constitution, which requires executive branch officers to “take Care that the Laws be faithfully executed”. As the foregoing shows, that’s just not happening, at least not as it should.
DOJ will likely allege that the plaintiffs lack standing to bring this suit at all (I seriously doubt that they will attempt to defend DHS’s actions). Whether the plaintiffs do have standing is an open question, but if they do not, I am not sure who would.
The costs of detention, responding to, and investigating crimes in their jurisdictions have all increased due to the federal government’s failure to comply with the INA, according to the plaintiff sheriffs and counties. And then, there is the danger to the community that results from having child sex offenders and drug dealers on the streets.
As for the ICE officers, they complain that they are being forced to violate the INA by not enforcing its mandates. That’s a big deal for sworn government agents.
Each of the plaintiffs is performing a public service by challenging the Biden administration’s blatant disregard for the law. They have already done one by bringing some fairly heinous—and shocking—cases of nonfeasance to light.