Florida Gov. Ron DeSantis asked the Biden administration to ensure that incarcerated aliens who are subject to deportation charges or deportation orders are transferred to ICE’s custody when they finish their sentences.
That process is accomplished by sending immigration detainers (Form I-247) to the prison or jail that is incarcerating the alien. Detainers —
- Notify the prison or jail that incarcerated aliens are subject to deportation charges or a deportation order and that ICE intends to put them in removal proceedings or execute their deportation orders when they finish their sentences;
- Ask the prison or jail to notify ICE when such aliens are about to be released; and
- Ask them to retain custody for up to 48 hours beyond the time when they otherwise would be released to provide ICE with time to pick them up.
When Trump was the president, the problem was that jails and prisons in “sanctuary cities” refused to comply with detainers. The problem now is that Biden has restricted the issuance of detainers only to incarcerated aliens he thinks should be deported — without regard to the removal grounds listed in the law.
In a memorandum dated Jan. 20, 2021, Biden’s acting DHS Secretary David Pekoske ordered a Department-wide review of immigration enforcement policies and practices. He also ordered Acting ICE Director Tae D. Johnson to issue interim operational guidance that would limit enforcement actions to deportable aliens who pose a threat to national security, border security, or public safety.
Johnson in turn issued an interim guidance memorandum on Feb. 18, 2021, in which he restricted the use of detainers and other discretionary enforcement measures to aliens in one of the following priority categories:
National Security: An alien is presumed to be a threat to national security if he —
- Has engaged in or is suspected of engaging in terrorism or terrorism-related activities; or
- He has engaged in or is suspected of engaging in espionage or espionage-related activities; or
- His apprehension, arrest, or custody is otherwise necessary to protect the national security of the United States.
Border Security: Aliens are presumed to be border security threats if they —
- Are apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after Nov. 1, 2020, or
- They were not physically present in the United States before Nov. 1, 2020.
The border security priority includes any alien who unlawfully entered the United States on or after Nov. 1, 2020.
Public Safety: Aliens are presumed to be public safety threats if they —
- Have been convicted of an “aggravated felony,” as defined by 8 U.S.C. §1101(a)(43); or
- Have been convicted of an offense involving active participation in a criminal street gang, or are 16 years of age or older and intentionally assisted an organized criminal gang or transnational criminal organization in carrying out illegal activities.
Enforcement actions can be taken against undocumented aliens who do not fit into one of these categories, but exceptions require preapproval from senior supervisors.
These restrictions have made it more difficult for ICE officers to know who they should arrest, which may be why ICE arrests have decreased by more than 60 percent during Biden’s first 100 days in office.
Florida sues
When the governor’s request did not produce results, Florida filed a suit against DHS Secretary Alejandro Mayorkas that asks the court to set aside the enforcement memos.
According to Florida’s complaint, unless the narrow set of prerequisites in the priority categories are met, immigration enforcement no longer exists.
Undocumented aliens who have committed serious crimes may not be deportable unless their offenses are aggravated felonies.
“Put simply, the Biden administration does not believe that being in the United States in violation of the immigration laws and committing serious crimes is sufficient reason to remove someone from the country.”
This results in the release of dangerous criminals who are likely to commit more crimes. Bureau of Justice Statistics data on the recidivism rates of state prisoners indicate that 68 percent of released prisoners are arrested again within 3 years, 79 percent within 6 years, and 83 percent within 9 years.
Texas and Louisiana sue too
On April 6, 2021, Texas and Louisiana filed a suit against Biden for the immigration detainer and other enforcement action restrictions in the two memos.
The complaint alleges that federal law requires Biden to take custody of many criminal aliens, including those who are subject to final orders of removal, have been convicted of drug offenses, or have been convicted of crimes of moral turpitude.
By refusing to take these criminal aliens into custody when they finish their sentences, Biden is disregarding non-discretionary legal duties and releasing dangerous criminals into our communities.
According to the suit, Biden also has violated formal agreements with Texas and Louisiana which provide that DHS will consult with Texas and Louisiana before taking actions which could reduce immigration enforcement. This “includes policies, practices, or procedures which have as their purpose or effect . . . decreasing the number of or criteria for detention of removable or inadmissible aliens from the country.”
My concerns
Biden has caused an unnecessary public safety threat with his restrictions on detainers to take custody of dangerous criminal aliens when they finish their prison sentences.
I also am concerned about his rejection of the removal grounds in the Immigration and Nationality Act. He has completely replaced them with priority categories that limit removals to aliens he thinks should be deported, which I think is a violation of the separation of powers principle in the Constitution.
Congress is supposed to write our laws, not the president.
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.