On Thursday, the Biden administration unveiled a modified immigration enforcement policy where Immigration and Customs Enforcement (ICE) agents who hunt for undocumented immigrants in the interior—and by extension the Border Patrol agents who patrol la frontera—were apparently told to stand down by Department of Homeland Security Secretary Alejandro Mayorkas.
This could be a big deal, but don’t buy it just yet. We’ve seen this play before and it doesn’t work out the way the headlines it’s meant to inspire suggest that it will.
Under the policy, U.S. immigration agents are not supposed to aggressively pursue, detain, and arrest undocumented immigrants who are not violent, dangerous, or intent on doing harm.
As Mayorkas told reporters, “We have guided our workforce to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security.”
Protecting national security and public safety is fine. But Mayorkas should not have mentioned “border security.”
Isn’t every illegal immigrant who crosses the border without authorization or permission, in effect, trampling “border security?” It would seem so.
Also a low priority for deportation: the very old, or very young; those who witnessed a crime or blew the whistle on a corrupt boss or unscrupulous landlord; and those who have been in the United States since before November 2020.
Any undocumented immigrant in the United States who falls into one of those categories would appear to have the golden ticket. Anybody who doesn’t qualify for one of those exemptions might want to start packing now.
It’s also noteworthy and important that Mayorkas mentioned in his comments the word “discretion.” That’s the “d-word” that really matters here—not deportation but discretion. Deportation is fairly cut and dried, and it just means removing from this country someone who shouldn’t be here in the first place. Discretion is the fungible but awesome power of those federal cops who enforce immigration law to decide who gets removed—and who gets to stay.
In all jurisdictions, police have the discretion to enforce the law or not enforce it. Ever had a highway patrol officer or state trooper give you a break on a speeding ticket even though you were, in fact, speeding?
Or maybe you believe what former President Donald Trump believed: that any immigrant who is in this country illegally should be deported. Period.
That line is a popular chew toy on conservative talk radio. It is also incorrect. Not all of the estimated 11 to 15 million undocumented immigrants in the United States should be deported or could be deported — even if we wanted to remove them. And many who got removed would come right back anyway, especially if their spouses and children were left behind on this side of the border.
If you were separated from your family, to what lengths would you go to reunite with them?
Besides, while it’s true that undocumented immigrants are breaking the law, it’s also true that they have become over the last 30 or 40 years absolutely essential to the U.S. economy, the productivity of at least half the states, and to the everyday lives of many Americans. We like to treat the undocumented as if they’re invisible, but they’ve become irreplaceable.
Bravo to Mayorkas for hitting this note in his remarks to reporters.
“The majority of undocumented immigrants have contributed so significantly to our communities across the country for years,” he said. “They include individuals who worked on the front lines in the battle against COVID, teach our children, do the backbreaking farm work to deliver food to our table.”
Can I get an “amen?” We all know this. And it’s about time that a high-ranking government official said it out loud.
About its change in policy, the Biden administration wants Americans to believe three things: that it is new and different from anything we’ve ever seen before; that is a radical departure from the thickheaded and hardhearted policies of the Trump administration; and that it is just good ol’ common sense, born of the realization that not all undocumented immigrants share the same circumstances so they shouldn’t all share the same fate.
No. 1 is not true. This kind of adjustment is not new. Those of us who follow the immigration issue have seen this movie before. On June 17, 2011, then-ICE Director John Morton issued an in-house memorandum to all field office directors, rank-and-file agents, and chief counsel. In the six-page document, Morton told the bureaucrats they “may” exercise discretion and could show leniency toward some undocumented immigrants by weighing certain factors. Those factors included the length of time the person was in the United States, whether the person had been brought as a child, whether the person was pursuing an education, whether the person had a criminal record, whether the person or immediate relative had served in the U.S. military, and whether the person had a spouse, child, or parent who was a U.S. citizen or permanent resident.
No. 2 is half-true. Biden does not have a kinder and gentler immigration policy than his predecessor. After taking office, he kept in place Trump’s historically low refugee cap of just 15,000 per year. Under pressure from the left, the president eventually raised the limit to 125,000. More recently, Biden broke his promise to scrap Title 42, a clause of the 1944 Public Health Services Law that the Trump administration conveniently reinterpreted in March 2020 and used as a tool to prevent the spread of COVID-19. Instead, he seized upon Title 42 to fast-track the deportation of more than 4,000 Haitians in less than 10 days without due process. The revised immigration policy could likewise turn out to be a bust, if there are enough exceptions written into it that allow overzealous immigration agents to continue to do what they are trained to do, and arrest and deport everyone they can.
No. 3 is true. Not all undocumented are the same, and so they shouldn’t be treated the same. But this has always been the case, which is why Border Patrol agents and ICE agents have long had a lot of discretion about who to detain, arrest and deport. That was true for decades before the Biden administration took office, and it will be true for decades after it is gone. To his eternal shame, former President Barack Obama made a mess of the immigration system by eroding this discretion by law enforcement. That helped Obama clear the path to deport about 400,000 illegal immigrants per year for a total of more than 3 million immigrants during his presidency. Obama deported the kind of people whose removal should not be a top priority—like tamale vendors, battered wives, and witnesses to crimes. That was a mistake that we should not repeat.
Speaking of mistakes, the Morton Memo arguably made things worse and not better. It inflamed conservatives, and gave false hope to liberals. The underlings at ground zero ignored it, and kept doing what they are trained to do: enforce the law. After all, ICE agents and Border Patrol agents are civil servants, and so they have no problem defying their bosses.
What Americans should really be concerned about is the possibility that this whole new immigration policy is just an elaborate con job designed to mollify progressives and fool Latinos into thinking that Biden warmly embraces immigrants.
Since when? It’s entirely possible that—like the Morton memo that preceded it—the Mayorkas mirage could turn out to be much ado about nothing.