On September 25, Patrick J. Lechleitner — ICE’s deputy director and de facto acting head — sent a bombshell letter to Rep. Tony Gonzales (R-Texas) and 22 other House members revealing that 425,431 convicted criminals — including thousands of murderers and sex offenders — and 222,000-plus other aliens facing criminal charges are on the agency’s non-detained docket of removable aliens, known to the agency but at large in the United States. Here’s why ICE is babysitting but not removing them.
So Many Criminal Aliens. On March 13, Gonzales and other members sent a letter to President Biden and DHS Secretary Alejandro Mayorkas, seeking information on the impact state and local sanctuary policies have had on ICE’s immigration enforcement efforts.
Key to the criminal alien disclosures in Lechleitner’s September 25 letter was the first question asked in that March letter:
ICE has reported more than 7 million cases on ERO’s docket as of Feb. 2024— a. How many of them are noncitizens who have been charged by a municipality? b. How many of them are noncitizens who have been convicted of a crime and released into communities? c. What is ERO’s current capacity for holding noncitizens in custody?
Lechleitner plainly drew the short straw, as it’s doubtful anyone else in the Biden-Harris administration wanted to admit that a population of criminal aliens roughly equivalent to the number of Boston residents is currently in the country.
Lechleitner started by apologizing for the six-month delay in providing Gonzales — an appropriator who control’s the agency’s cash flow — with the information requested, before turning to the deleterious effects sanctuary jurisdictions have on ICE’s enforcement efforts.
The deputy director then shamefully peddled the administration’s (and the Kamala Harris campaign’s) trope that the immigration system is “broken” before finally ponying up the stats requested:
As of July 21, 2024, there were 662,566 noncitizens with criminal histories on ICE’s national docket, which includes those detained by ICE, and on the agency’s non-detained docket. Of those, 435,719 are convicted criminals, and 226,847 have pending criminal charges.
Lechleitner could have left it at that and awaited (and ignored for another six months) the inevitable congressional follow-up letter, but to his credit the deputy director manned up and broke those crimes down into their individual categories in a chart. And what a story that chart told.
As of July 21, more than 13,000 aliens convicted of homicide, 15,811 convicted of sexual assault, 9,461 convicted of other “sex offenses”, 851 convicted of kidnapping, nearly 3,400 convicted of weapon offenses, 2,000-plus convicted of robbery, 4,627 convicted of forgery, 56,533 with dangerous drugs convictions, 14,301 burglars, and 62,231 aliens convicted of assault are all on ICE’s docket of non-detained aliens.
That doesn’t count hundreds of thousands of other convicted criminal aliens free to roam around the country (including one convicted of some unspecified “civil rights” offense), nor does it include more than 222,000 others still facing criminal charges for homicide (1,845), sexual assault (4,250), robbery (2,039), kidnapping (851), forgery (4,627), and myriad other charges.
While it may be true — as many in the media contend — that “immigrants are less likely to commit crimes than U.S.-born Americans”, it’s axiomatic that aliens with criminal convictions are criminals. And Congress, by and large with only limited exceptions, wants DHS to deport them.
So, why are there so many aliens with serious criminal convictions and charges here who not only haven’t been removed, but aren’t even in ICE custody?
The Mayorkas Memo. As Gonzales noted in his March letter, ICE currently has a non-detained docket of more than 7 million aliens it’s attempting to keep track of, and I recently explained that nearly 1.3 million of them are under final orders of removal — meaning that they’ve received due process and are just waiting to be deported.
Thousands — and possibly hundreds of thousands — of the more than 425,000 convicted criminals on Lechleitner’s list fall under that latter category of aliens under final orders of removal.
Section 241(a) of the Immigration and Nationality Act (INA) requires DHS to take every alien ordered removed into custody and to hold them for at least 90 days (the “removal period”) until they’re deported.
That detention mandate has only — at best — been an aspirational goal, but Congress is truly serious when it comes to DHS’s obligation to detain aliens removable on criminal grounds.
How serious? Section 241(a)(2) of the INA makes clear that, “During the removal period, the [DHS secretary] shall detain the alien” and that “[u]nder no circumstance during the removal period shall the [DHS secretary] release an alien who has” been found inadmissible or deportable on any of the criminal removal grounds in the INA.
The Biden-Harris administration, however, has long refused to comply with that mandate and, in fact, started ignoring it minutes after each took their respective oaths of office.
The first act of the then-new administration was to impose a 100-day moratorium on all deportations from the United States, consistent with a vow Biden made on the campaign trail in February 2020.
A federal judge quickly put the kibosh on that removal pause, but even federal courts can’t force the executive branch to remove anybody — as the Supreme Court would later concede in its June 2023 opinion in U.S. v. Texas.
Texas was a state challenge to criminal alien release provisions in a September 2021 directive issued by Mayorkas captioned “Guidelines for the Enforcement of Civil Immigration Law” (“Mayorkas memo”).
The Mayorkas memo ostensibly “prioritized” removal cases under the guise of protecting limited DHS resources.
To implement those priorities, the secretary imposed onerous restrictions on ICE officers and attorneys in taking any “enforcement action”, i.e., investigating, arresting, detaining, prosecuting, or deporting any facially removable alien.
Mayorkas specifically required ICE to consider both “aggravating factors” (the seriousness of the conduct that rendered the alien removable) and “mitigating factors” (the alien’s youth or old age, period of presence, physical and mental health, eligibility for immigration “relief”, and even whether a family member of the alien was a government employee) before taking any enforcement action.
Such considerations don’t appear anywhere in the INA, and it should be apparent that these guidelines serve no real purpose besides wasting the resources they purport to conserve. Nonetheless, Mayorkas contended this was nothing more than a valid exercise of DHS’s inherent prosecutorial discretion.
The state of Texas respectfully disagreed and filed suit in the U.S. District Court for the Southern District of Texas seeking to block the enforcement of the Mayorkas memo, arguing it directly contravened two separate INA provisions.
The first was section 241(a)(2) of the INA, the detention mandate for criminal aliens under final orders of removal I discussed above.
The second was section 236(c) of the INA, which requires DHS to detain aliens removable on certain criminal grounds “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation”.
Though Texas successfully blocked implementation of the Mayorkas memo at both the district and circuit court levels, the Biden-Harris administration filed an application for writ of certiorari with the Supreme Court to defend its authority to not detain criminal aliens.
A majority of justices sided with the administration, and overly simplistically, held there is no precedent for a plaintiff — even a state — to request that a third-party be prosecuted on either criminal or immigration grounds.
Consequently, the Mayorkas memo went back into full effect, though honestly nothing suggests DHS didn’t implicitly follow the restrictions therein even when the memo itself was blocked (which under the Supreme Court’s order the department had the power to do).
Thus, some unknown but likely significant number of those hundreds of thousands of criminal aliens at large in the United States are either under final orders of removal, but not detained as required by section 241(a)(2), or are in removal proceedings but not in detention as required by section 236(c) of the INA.
More than a few likely aren’t even in proceedings at all — all due to the restrictions in the Mayorkas memo.
That such deliberate non-enforcement is a key component of the “broken immigration system” that the deputy director complains about is just a sad, and cruel, irony.
“Recalcitrant Countries”. That said, some subset of those criminal aliens under final orders of removal are nationals of so-called “recalcitrant countries”, that is, countries that refuse to issue the travel documents DHS needs to physically deport them.
Cuba, India, and China are all notorious for this practice (which violates international norms), but you can add Russia, Vietnam, Venezuela, and numerous others to that list as well.
Lest you conclude the Biden-Harris administration should not be blamed for releasing criminal aliens under final orders of removal it is unable to obtain travel documents for, think again.
Section 243(d) of the INA has mechanism under which the DHS secretary can notify the secretary of State whenever any country refuses to accept back its nationals, following which the latter must “order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas”.
While the Trump administration only used that authority on a limited basis, it did so effectively with respect to the handful of countries involved.
If the Biden-Harris administration had the will to cease issuing, say, student visas in Shanghai or Mumbai for a few days, for example, I can guarantee you Beijing and New Delhi would quickly clear the backlog in travel documents for removable criminals under final orders in the United States.
Of course, an administration reluctant to even place criminal aliens into removal proceedings without requiring ICE officers to jump through any number of ridiculous hoops is unlikely to be in any hurry to unload Chinese or Indian deportees, even if they do have unsavory records in the United States.
Administrative Closures. Moreover, an unknown number of the criminal aliens described in the Lechleitner letter are respondents in immigration-court cases that are currently subject to “administrative closure”. Let me explain.
ICE has unfettered discretion to place removable aliens into removal proceedings, and immigration judges can’t second-guess that decision; their only role is determining whether the alien is removable or not, and whether the alien is eligible for any sort of relief.
In certain instances, however, aliens have pending applications elsewhere (such as USCIS) that would — if approved — render them eligible for relief from removal. In such cases, the judge can kick the case down the road pending such adjudication by closing it administratively.
As the Board of Immigration Appeals (BIA) describes the practice: “Administrative closure ... is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket.”
That said, the BIA further explains that:
Administrative closure is not a form of relief from removal and does not provide an alien with any immigration status. After a case has been administratively closed, either party may move to recalendar it before the Immigration Court ... or to reinstate the appeal before the Board.
That extra-statutory administrative closure authority has been serially abused by various administrations and also by aliens seeking to put off the inevitable. That’s why the Trump administration attempted to end administrative closure altogether, only to be stymied by two federal circuit courts.
Current Attorney General Merrick Garland formally resurrected the practice in July 2021, and although DOJ (which runs the immigration courts) used to publish statistics on the number of cases that were administratively closed, it hasn’t done so in the last two years (likely in an attempt to hide the scope of closures).
That said, when it last published stats in January 2022, more than 309,000 pending removal cases were administratively closed. Given that more than 35,000 asylum claims pending before immigration judges were disposed of in such a manner in FY 2023 through the third quarter of FY 2024, that total is likely much (much) higher.
By the way, when DOJ last published those administrative closure statistics in January 2022, it admitted that “the average length of time a case has been administratively closed [was] 6,199 days (approximately 17 years) and the median length of time [was] 4,346 days (approximately 12 years)”. Hardly a “temporary” measure.
The likely massive but undisclosed increase in administrative closures is itself a direct byproduct of the Mayorkas memo.
In April 2022, Kerry Doyle, ICE’s “Principal Legal Advisor” (“PLA”, the agency’s de facto general counsel) issued a memo captioned “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion”, which implemented the Mayorkas’ restrictions and imposed them on the ICE attorneys who represent DHS (and you) in immigration court.
While Doyle makes clear therein that she “prefers dismissal of proceedings as a discretionary tool in nonpriority cases” as defined in the Mayorkas memo (including those involving criminal aliens), her attorneys:
may, however, agree to administratively close nonpriority cases when the noncitizen does not oppose and there are specific facts that militate in favor of this alternative outcome (e.g., illness of the noncitizen that currently prevents their participation in removal proceedings to pursue a form of relief not otherwise available to them where the illness is expected to resolve in the foreseeable future).
The Total Is Likely Bigger than Lechleitner Concedes. Hold that last excerpt in mind as I tell you that the total number of criminal aliens known to ICE and yet still free in the United States is likely much larger than even Lechleitner concedes.
That’s because, as PLA Doyle explains, her preference — and the DHS secretary’s — is for ICE attorneys to dismiss removal cases involving aliens who don’t fit within the tight strictures of the Mayorkas memo, not administratively close them.
If those cases are simply closed, they remain on ICE’s non-detained docket. Once they are dismissed, however, ICE no longer has any responsibility — or authority — to keep track of them.
Gonzales and his colleagues may want to ask how many cases involving criminal aliens have been dismissed in the past three-plus years.
Sanctuaries are to blame for crimes committed by the aliens they shield from ICE enforcement, but ICE shoulders the same responsibility to the victims of crimes committed by criminal aliens whom the agency should, by law, be detaining. As the September 25 letter makes clear, there are hundreds of thousands of them.
Lechleitner should spare us the crocodile tears about “the challenges of operating within a broken immigration system”, when he — and his boss and his lawyer — are the ones breaking it by allowing hundreds of thousands of criminal aliens to roam free, given that Congress demands they be detained.