Category: Immigration Law

In a recent post, I explained that Biden isn’t trying and failing to secure the border. Rather, his administration says the border’s secure because it’s as secure as it wants it — meaning not secure at all. That border inaction is similar to the administration’s efforts to waste DHS resources not enforcing the immigration laws generally. Those facts are the “what”. The bigger question is why the White House refuses to enforce the immigration laws it’s sworn to uphold. Based upon administration statements, it’s apparently because the president believes that the laws as written are inequitable.

Background on Biden’s Immigration Non-Enforcement at the Interior. Before I begin, however, I should quantify the administration’s non-enforcement efforts. They began the day Biden was sworn in, when 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 nearly all removals from the United States (the latter was blocked by a federal judge and then expired).

Under the guise of “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 convicted of aggravated felonies under section 101(a)(43) of the INA released from incarceration on or after the date of that memorandum.

By its terms, the Pekoske memo was a placeholder until other immigration enforcement guidelines were issued by DHS. Those appeared four weeks later, on February 18, 2021, when Acting ICE Director Tae Johnson issued a new memo, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (the Tae Johnson memo).

The Tae Johnson memo expanded slightly on the class of aliens deemed enforcement priorities in the 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, 2021, U.S. district court Judge Drew Tipton enjoined the restrictions the Pekoske and Tae Johnson memos placed on immigration officers in their enforcement of the immigration laws against criminal aliens in Texas v. U.S. — a suit filed by the states of Texas and Louisiana to force DHS to implement the immigration laws as written.

A month later, a three-judge panel of the Fifth Circuit narrowed Judge Tipton’s injunction. While the full Fifth Circuit thereafter vacated that decision and agreed to rehear the case, new superseding guidance was issued on September 30 by DHS Secretary Alejandro Mayorkas before a hearing could be held, and the matter was returned to Judge Tipton.

That “Mayorkas memo”, formally captioned “Guidelines for the Enforcement of Civil Immigration Law”, refined the two preceding ones by again “prioritizing” the three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens entering illegally on or after November 1, 2020 (threats to border security); and aliens convicted of “serious criminal conduct” (threats to public safety).

While not as restrictive in its scope as the prior two memos, Mayorkas’ required immigration authorities (primarily but not exclusively ICE officers and attorneys) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of “enforcement action” (investigation, arrest, detention, prosecution, and removal) against facially removable aliens.

Judge Tipton vacated the Mayorkas memo in June, prompting the administration to seek a stay of that order, first from the Fifth Circuit (which denied its request), and then the Supreme Court. The justices also denied the government’s stay request, but agreed to hear the merits of the administration’s appeal directly in December.

In the interim, however, interior enforcement has suffered, as my colleague Jessica Vaughan has explained. Total removals were 70 percent lower in FY 2021 than in FY 2020 (not exactly a banner year due to Covid-19 detention restrictions), and although the administration contends that it prefers to prioritize cases involving the most dangerous aliens, criminal alien removals were off sharply as well.

Border Descends into Chaos as Biden Ditches Deterrence. The Southwest border also began descending into chaos almost immediately after Biden took office. Border Patrol agents set a new yearly record for migrant apprehensions there in FY 2021 (with a sharp uptick beginning after the inauguration), a record they shattered in just the first 10 months of FY 2022.

While the administration blames external forces for the humanitarian disaster at the border, its own policies are largely to blame.

For example, even though the INA requires DHS to detain illegal entrants — from the moment they’re caught to the point they’re granted immigration status or removed — Biden instead released 1.129 million aliens encountered at the border through the end of June. Aliens enter illegally to live and work here, and those releases allowed them to achieve that goal, encouraging more to come.

Prosecuting foreign nationals for entering illegally (a misdemeanor for a first offense and a felony for serial offenders) is a proven deterrent, but Biden has shown no interest in prosecuting aliens for the offense because, as I have explained many times before, deterring illegal entrants is not an administration objective.

It prefers to manage the chaos at the border by moving illegal migrants into the already overwhelmed immigration court system instead. Once in court (assuming they show up), those aliens can extend their illegal stays in the United States indefinitely, most by filing asylum claims. Some will be successful, but if history’s a guide most will not.

Why Won’t Biden Enforce the Laws and Secure the Border? Understand that the administration has a statutory duty to enforce the INA and to secure the border. The legal basis for the plaintiff states’ claims and Judge Tipton’s orders in Texas is that Congress has ordered DHS in the INA to apprehend and remove certain criminal aliens, and that the administration simply refuses to do so.

Similarly, Congress has required the DHS secretary to maintain “operational control” of the border, defined as “the prevention of all unlawful entries into the United States, including entries by terrorists [and] other unlawful aliens”. Mayorkas claims he’s complying with that mandate, but in at least 1.129 million instances, he hasn’t been.

That brings me to the question of why, in the face of these clear congressional directives, Biden refuses to enforce the immigration laws and secure the border.

Some have argued the administration is trying to “replace” the current U.S. population with one more compliant with its other policies. This “replacement theory” has been termed “racist” and “antisemitic” (among other epithets), but Pedro Gonzalez, associate editor at Chronicles: A Magazine of American Culture, explained in May that “Democrats and progressive activists, based on their own rhetoric over the years, [have subscribed] to ‘replacement theory’ more than anyone else”.

That said, however, proponents of this theory overlook the following facts: (1) The United States has always been demographically diverse; (2) today’s illegal migrants won’t be voters for a decade, if ever; (3) it’s hard to move the needle in a federal republic with a population of 333 million; and (4) immigrants aren’t reliably monolithic in their voting patterns.

The best proof for this last point is Ruy Teixeira, co-author of “The Emerging Democratic Majority”, cited by Gonzalez in his op-ed. Teixeira just left the liberal Center for American Progress for the conservative American Enterprise Institute, in part due to “the relentless focus on race, gender, and identity in historically liberal foundations and think tanks”.

More precisely, however, Teixeira has spent months warning Democrats that Hispanic voters are not as wedded to the party’s current policies (including its immigration stance) as the party thinks. Look no further than the recent special election of Republican Mayra Flores, an immigrant from Mexico who won espousing border security in heavily Hispanic south Texas.

The real answer, in my opinion, is much simpler. The Biden administration believes that the immigration laws as written are inequitable and thus require a heavy thumb on the scale to balance out this inherent inequity.

Note that one of the first documents Biden issued as president was Executive Order (EO) 13985, “On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”.

It sets out a policy of pursuing “a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality”, defining “equity” as:

[T]he consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.

EO 13985 never mentions the words “immigrant”, “alien”, “migrant”, or even Biden’s favored term, “noncitizen”, and it would be reasonable to assume that it’s only meant to apply to “Americans” (that is, citizens and legal immigrants). Reasonable, but wrong, as a “Considerations” memo issued at the same time as and implementing the Mayorkas memo reveals.

The legal justification for the restrictions in the Mayorkas memo is that notwithstanding the mandatory enforcement language in the INA, the department and its officials have absolute authority to exercise “prosecutorial discretion” to not enforce the immigration laws.

That is a questionable proposition, certainly in extremis or when it becomes a blanket amnesty (which in this context, it sort of has), but the Considerations memo attempts to justify it, citing to EO 13985:

On his first day in office, President Biden affirmed that “advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.” In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration’s stated commitment to “advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” [Footnotes omitted.]

Not surprisingly, that memo never lists the “scholars and professors” who have reached this extremely questionable conclusion, but even if it did, that would be a poor reliance on authority. It would be better to rely on the line officers who do the work instead of those reclining cosseted by tenure in academia, but I’m not calling the shots at the White House.

More importantly, however, this construct elides the crucial distinction between how our laws apply to Americans and to foreign nationals. That distinction is not just one of fact and logic (and equity under the administration’s definition), but it’s in the law itself. For example, the Supreme Court held in 1889:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.

And with respect to Congress’ authority to set the immigration rules, the 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.

Fact, law, and logic notwithstanding, however, the Biden administration has plainly determined that the immigration laws as written are inequitable, and therefore can and must be dispensed with as equity requires.

In the context of the Mayorkas memo, that means requiring ICE officers and lawyers to consider how “enforcement action” will affect the alien and the alien’s family, not just the United States. At the border, it means providing migrants with “safe, orderly, and legal pathways … to be able to access our legal system” above and beyond what Congress has mandated, even if that means DHS cannot achieve operational control.

The Whether. That brings me to the “whether”, specifically whether the administration will be allowed to continue to ignore Congress’ clear directives.

It’s possible and even likely that the Supreme Court in Texas will dismiss the administration’s appeal in whole or part. The provisions of the INA cited by Judge Tipton don’t give DHS much wiggle room to not detain and remove criminal aliens, regardless of what the executive branch thinks of the law.

Further, in denying the government’s request for a stay in Texas, the Fifth Circuit concluded that the administration’s “replacement” of the INA’s statutory mandates “with concerns of equity and race” in the Considerations memo “is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the INA”.

That said, no court — not even the nation’s highest one — can force DHS to arrest, detain, prosecute, or remove any given alien.

The penultimate decision as to whether Biden will be allowed to ignore the clear mandates in the INA in the name of “equity” will be made by the voters in the November mid-term elections. The next, 118th, Congress can use the “power of the purse” to squeeze more enforcement from the president, assuming it wants to.

The ultimate decision, however, will be made by the voters in November 2024, when Biden is up for reelection (assuming he runs again). Whether they believe as the president does that the immigration laws are inherently inequitable will be on the ballot, whether the electorate knows it or not.