Why isn’t Biden removing more criminal migrants?

We have had a record-breaking number of illegal crossings at the Southwest border during the Biden presidency, but DHS is still denying that we are experiencing a border crisis. At an oversight hearing before the House Judiciary Committee on April 28, DHS Secretary Alejandro Mayorkas testified that the border is secure.  

FBI Director Christopher Wray has a different opinion. He testified at a hearing before the Senate Judiciary Committee on Aug. 4 that the border “represents a significant security issue and represents a wide array of criminal threats that flow out of it.”

The FBI Director is right: the guidelines aren’t working.

Chris Cabrera, a National Border Patrol Council vice president, explains one of the connections between the record-breaking illegal crossings and crime. He says that drug smugglers use the migrant groups that make illegal crossings to distract agents. When border patrol officers are taken from their patrol duties at other sections of the border to process the groups of illegal crossers, the border sections they are abandoning are unprotected. 

The administration replaced the statutory enforcement provisions in the Immigration and Nationality Act (INA), with its own guidelines, supposedly to be able to use its enforcement resources to remove migrants who pose a threat to national security, public safety, and border security.

But Secretary Mayorkas said in the guidelines memorandum that the fact that migrants are deportable under the enforcement provisions in the INA should not alone be the basis for an enforcement action against them.     

Are the guidelines just a pretext? 

The administration’s enforcement policies were not implemented until Feb. 18, 2021, and border removals declined in fiscal 2021, because most of the illegal border-crossers were expelled pursuant to the Title 42 order instead of being subject to removal under the INA provisions.

However, according to immigration enforcement data obtained by Jessica M. Vaughan through FOIA requests, removals from the interior of the country also declined. They dropped from 62,730 in fiscal 2020, to 31,557 in fiscal 2021, and remained far below the fiscal 2019 level of 85,958, despite an ease in pandemic restrictions.

ICE immigration arrests in the interior fell to the lowest level in more than a decade in fiscal 2021. ICE’s 6,000 enforcement officers each averaged about 12 immigration arrests that fiscal 2021, only about one per month.

The removal of convicted criminals fell from 103,762 in fiscal 2020, to 39,149 in fiscal 2021. Removal of aggravated felons fell from 9,161 in fiscal 2020, to 5,221 in fiscal 2021.

TRAC data indicates that in the first six months of fiscal 2022, only 3.1 percent of the deportation proceedings ICE initiated involved national security or criminal charges — 31.1 percent involved other immigration charges, and the remaining 65.8 percent involved entry without inspection charges.

One of the problems is that the guidelines do not include all of the criminal removal grounds. They leave out migrants convicted of crimes of moral turpitude, drug offenses, multiple offenses with an aggregate sentence of confinement of five years or more, and certain firearms offenses.

Why would the administration do that if it is serious about removing migrants who pose a danger to public safety?

287(g) Program

The same question applies to the administration’s reduction in the use of 287(g) partnerships with state and local law enforcement agencies from 4,319 to 1,613 in fiscal 2021, which also contributed to the decline in the removal of criminal migrants. 

The 287(g) Program is very helpful for identifying and taking custody of criminal migrants. It authorizes state and local law enforcement officers to act as a force multiplier in the identification, arrest, and service of warrants and detainers of incarcerated migrants with criminal charges or convictions.   

Criminal migrants not being detained

On June 10, a federal judge found that the administration was not complying with INA section 1226(c)(1)(B), which requires DHS to take into custody any migrant who has committed an aggravated felony. 

The administration claimed that it didn’t have the detention facilities needed to comply with that provision. But the judge found that the administration wasn’t making a good faith effort to comply with it. The administration submitted two budget requests in which it asked Congress to cut those resources by 26 percent. And it persistently underutilized existing detention facilities.

According to TRAC, as of July 17, 69 percent of ICE immigrant detainees had no criminal record. 

Expected increase in illegal crossings

National Border Patrol Council President Brandon Judd is afraid that when the Title 42 order is terminated, which is inevitable, it will open the floodgates to illegal immigration. Pursuant to that order, the border patrol expelled more than 1 million illegal crossers in fiscal 2021, and 828,232 in the first 9 months of fiscal 2022. This will make it much easier for smugglers of drugs and other contraband to divert the attention of border patrol officers to open up sections of the border.

Also, Todd Bensman claims that access to the United States from Central America has gotten easier recently. He claims that there is a new migrant “superhighway” bringing the world from South American to Texas.

The Biden administration appears to have released Mexico from its agreement to use its 30,000 national guard soldiers to stop caravans of migrants heading to the United States. In late June, Mexico City ordered its soldiers to yield the southern highways to the migrant caravans. 

Bensman also claims Panama has established a new sea route for taking migrants to the United States by allowing smuggling vessels from Colombia to land much further northwest up the Caribbean coast on Panamanian territory. This permits the migrants to bypass the Darien Gap, which consists of more than 60 miles of dense rain forest, steep mountains, and vast swamps. It is one of the world’s most dangerous migration routes.

Does this information indicate that the guidelines are a pretext for not taking enforcement actions against migrants who are just here unlawfully? I think it does.

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 him at https://www.blogger.com/blog/posts/2306123393080132994