Department of Homeland Security (DHS) Secretary Alejandro MayorkasAlejandro MayorkasJohns Hopkins to launch degree program in cybersecurity and policy The Hill's Morning Report - Presented by Altria - New front in mandate wars; debt bill heads to Biden DHS to end workplace raids, shift focus to employers over undocumented workers MORE recently issued a memorandum with enforcement guidelines for the apprehension and removal of aliens who are in the United States in violation of our immigration laws. The objective of the guidelines is to prioritize the apprehension and removal of deportable aliens who pose a threat to national security, public safety, or border security.
Mayorkas’ guidelines are the final version of interim guidelines that were issued in a previous memorandum on Jan. 20, 2021.
Former president Donald TrumpDonald TrumpRobert Gates says 'extreme polarization' is the greatest threat to US democracy Cassidy says he won't vote for Trump if he runs in 2024 Schiff says holding Bannon in criminal contempt 'a way of getting people's attention' MORE also prioritized the removal of aliens who pose a threat to our public safety, and he was successful in achieving that objective.
Biden won’t be.
Biden’s interim guidelines severely impede ICE’s efforts to arrest aliens who pose a threat to public safety — and the final guidelines will too.
In fiscal 2018, approximately 138,117 (87 percent) of the 158,681 aliens Trump’s administration arrested in the interior of the country were convicted criminals or had pending criminal charges; in fiscal 2019, it was 123,128 (86 percent) of 143,099, and in fiscal 2020, it was 93,061 (90 percent) of 103,603.
According to a Washington Post article, Biden’s interim guidelines reined in ICE enforcement so severely that the agency’s 6,000 officers were averaging one arrest every two months, which isn’t enough to achieve enforcement objectives of any kind. And the situation hasn’t improved much since then.
ICE arrested and booked into detention 4,281 aliens during September 2021. This raises the average number of arrests — with detention — per agent to almost one every month and a half, but 75.6 percent of them had no criminal record.
Biden’s enforcement guidelines also may be responsible to some extent for the border crisis, but that situation may be due primarily to reversing Trump’s border security measures.
Mayorkas’s memorandum prioritizes deportable aliens in the following categories (slightly paraphrased):
- Threat to National Security — An alien is considered a threat to national security if he has engaged in or is suspected of engaging in terrorism or espionage.
- Threat to Public Safety — Determining whether a deportable alien poses a threat to public safety requires an assessment of the totality of the facts and circumstances.
Factors that may militate in favor of an enforcement action include:
- The gravity of any criminal offenses;
- The nature and degree of harm criminal offenses have caused; and
- The use of a dangerous weapon in committing a crime.
Factors that may militate against an enforcement action include:
- Advanced or tender age;
- Lengthy presence in the United States;
- A mental condition that may have contributed to any criminal conduct;
- A physical or mental condition requiring care or treatment;
- The impact of removal on the alien’s family in the United States;
- Military or other public service; and
- Evidence of rehabilitation.
Enforcement officers must evaluate the totality of the facts and circumstances to determine whether an alien poses a threat to public safety.
- Threat to Border Security — An alien is considered a threat to border security if he was apprehended while attempting to make an unlawful entry, or he was apprehended after unlawfully entering the United States after November 1, 2020. The totality of the facts and circumstances must be considered here too.
The memorandum requires ICE to establish a rigorous review process to ensure proper compliance with these guidelines and to collect “detailed, precise, and comprehensive data as to every aspect” of enforcement actions.
Separation of powers
Presidents have prosecutorial discretion, but this does not mean that they can disregard the statutory deportation grounds in federal law and write their own — which appears to be what Biden is trying to do. Compare his priority categories to the list of “deportable aliens” in section 1227 of the Immigration and Nationality Act (INA).
The U.S. Constitution divides the government into separate branches, each of which has separate and independent powers. Congress writes the laws, and the president enforces them. This is the separation of powers principle.
And some of the enforcement provisions in the law are not subject to prosecutorial discretion, such as the mandatory detention provisions in sections 1226(c) and 1231(a)(2) of the INA. Biden currently is in court over refusing to comply with these provisions. The judge’s decision on a temporary injunction in that case sums up the separation of powers problem Biden is causing by quoting from a Senate report on alien criminality in the United States:
“No matter how successful Congress might be in crafting a set of immigration laws that would — in theory — lead to the most long-term benefits to the American people, such benefits will not actually occur if those laws cannot be enforced.”
Information that is not available
Biden’s enforcement guidelines require an assessment of the totality of an alien’s circumstances before taking an enforcement action against him or her — but the data needed to make such an assessment isn’t available to ICE officers in the field and probably won’t be at their offices either. DHS might have records on the aliens ICE officers need to assess from previous encounters, but the officers involved in the previous encounters may not have been able to get much information on them either.
It is possible to obtain at least some of the information needed for the required assessment from state and local police — or prison authorities — who have arrested or incarcerated aliens for committing crimes in the United States, but that source of information is withheld when the officers holding the aliens are subject to sanctuary policies that prevent them from cooperating with ICE — and Biden apparently supports such policies. Trump issued an executive order in 2017 that directed the Departments of Justice and Homeland Security to withhold federal funding from sanctuary jurisdictions; Biden rescinded the order.
Lack of information isn’t the only problem.
Four Texas sheriffs and an association of ICE officers have sued Biden, claiming that his enforcement guidelines are allowing “extremely dangerous illegal aliens” to be released onto the streets.
Unless Biden makes his enforcement guidelines easier to apply, Americans are going to be victims of crimes — perhaps many crimes — committed by undocumented aliens who would have been deported under other circumstances and by other administrations.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.