Why won’t Biden-Harris remove migrants who pose a threat to public safety? 

Rep. Tony Gonzales (R-Texas) and 22 of his congressional colleagues sent a letter to the Biden-Harris administration in March expressing concern about the “criminal illegal aliens” the administration is releasing into the country. They also express concern about the sanctuary cities that are “providing safe harbor to violent criminals who have entered our country illegally.” 

They aren’t likely to get much help with sanctuary jurisdictions from Vice President Kamala Harris. She comes from California, the most populous of the sanctuary states. 

U.S. Immigration and Customs Enforcement Deputy Director Patrick J. Lechleitner responded in a letter dated Sept. 25 that, as of July 21 of this year, there were 425,431 immigrants with criminal convictions on ICE’s non-detained docket. Their offenses include 13,099 homicides; 15,811 sexual assaults; 2,521 kidnappings; 13,423 weapon offenses; 10,031 robberies; 56,533 dangerous drug offenses; 14,301 burglaries; and 62,231 non-sexual assaults.  

Being on ICE’s non-detained list just means that a migrant isn’t being detained by ICE. It’s likely that many of them are in prison, but there is no way of knowing how many. The Federal Bureau of Prisons maintains statistics on the citizenship of its inmates, but only about 13 percent of all prison inmates in the United States were in federal prisons in 2022. State and local jurisdictions aren’t all required to keep such records; it varies from state to state. 

Nevertheless, it seems very likely that many of the 425,431 migrants on ICE’s non-detained list are not in prison. In any case, it is apparent that ICE is not detaining many criminal aliens — as of Sept. 8, the administration was only detaining 37,395 migrants, and about 22,000 of them had criminal records.  

Apparently, protecting American communities from inadmissible migrants who might pose a safety threat is not one of the administration’s priorities.  

In fact, ICE’s annual report for fiscal 2023 indicates that the administration is using alternatives to detention for many of the immigrants on its docket, and there is reason to doubt that ICE is able to keep track of their locations.

The Department of Homeland Security inspector general reviewed the records of 981,671 illegal border crossers who were apprehended and then released by the Border Patrol between March 2021 and August 2022. In a report dated Sept. 6, 2023, the inspector general concludes that more than 177,000 of the address records were “missing, invalid for delivery, or not legitimate residential locations.” 

This may explain why ICE is having trouble removing deportable immigrants. In fiscal 2023, there were 1,292,830 migrants subject to final deportation orders, but ICE was only able to remove 142,580 (11 percent) of them.  

The administration also has made it more difficult to initiate removal proceedings against the migrants it has released into the country if they fail to establish a lawful basis for remaining and won’t leave voluntarily.  

On Sept. 30, 2021, DHS Secretary Alejandro N. Mayorkas issued a memorandum that provides guidance on when enforcement measures may be warranted. He restricted enforcement actions to deportable immigrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” According to Mayorkas, the fact that immigrants are deportable should not alone be the basis for conducting enforcement actions against them.  

In addition, Mayorkas made it difficult to determine whether an immigrant poses a threat to public safety. He prohibits making this determination on “bright lines or categories,” stating instead it must be based on “an assessment of the individual and the totality of the facts and circumstances.” But officers in the field will not have access to the information needed to make such determinations. 

The administration has released more than 5.4 million inadmissible migrants into the U.S. who did not go through the screening process to get a visa. And nothing is known about 1.9 million known “got-aways” who crossed the border illegally without being apprehended. It is not possible to know how many of these 7.3 million migrants pose a threat to public safety. 

When the number of illegal crossers became a liability in the upcoming elections, the administration made a deal with the Mexican government for its assistance in preventing migrants traveling through Mexico from reaching our border.

This has worked. Illegal crossings are down. But for how long?

The administration has released so many migrants into the country that the immigration court has become overwhelmed. Its backlog was 1,290,766 cases when the Biden-Harris administration began. As of the end of August, it had risen to 3,709,569 cases.  

The administration proposed funding for more immigration judges in Title I of its border bill, but the bill grossly underestimates the number of judges it would take to eliminate the backlog.  

As of the end of August, the immigration court had received 1,718,247 new cases in fiscal 2024, and it had only closed 837,352. At that rate it would take four years to eliminate the backlog if the court didn’t receive any new cases. 

Frankly, I think the Biden-Harris administration has pushed us past the tipping point by letting more than 7 million inadmissible migrants into the country. There aren’t any politically acceptable ways to fix the problems this has caused. 

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.