Can Biden get away with not enforcing the immigration law?

Betty Q. Hixson

Republicans plan to use Biden’s immigration enforcement policies against the Democrats in the upcoming midterm elections, and recent polls indicate many voters are worrying “a great deal” about illegal immigration — and that they think the Biden administration is encouraging it.

There are two Biden administration actions at the heart of the enforcement issue.

First, Homeland Security Secretary Alejandro N. Mayorkas established enforcement priority categories with a Sept. 30, 2021, memorandum on Guidelines for the Enforcement of Civil Immigration Law:

  • Threat to National Security — Migrants who have engaged in or are suspected of terrorism or espionage, or who otherwise poses a danger to national security.
  • Threat to Public Safety — Migrants who poses a current threat to public safety, typically because of serious criminal conduct.
  • Threat to Border Security — Migrants who were apprehended at the border or a port of entry while attempting to unlawfully enter the United States, or who succeeded in making an unlawful entry after November 1, 2020.  

Mayorkas restricted enforcement actions to migrants in one of these priority categories, but exceptions are permitted with preapproval from senior supervisors. According to Mayorkas, the fact that an individual is removable by law should not alone be the basis for taking an actual enforcement action against him.   

The result is that there is little, if any, danger that a deportable migrant in the interior of the country will be put in removal proceedings unless he is convicted of a crime that makes him a threat to national security or public safety, or ICE knows that he entered unlawfully after Nov. 1, 2020.  

This encourages illegal crossers to keep trying until they succeed in evading detection — or until CBP releases them into the interior of the country.

Extension of the guidelines

On April 3, 2022, Kerry E. Doyle, the ICE Principal Legal Advisor, issued a memorandum that took the enforcement guidelines a step further. She directed ICE lawyers to remove nonpriority cases from the immigration court docket. The preferred method is a motion to dismiss without prejudice.

In other words, the Biden administration — after limiting who can be prosecuted — has decided to simply dismiss pending immigration cases, allowing people to stay in country. They expect to do this with about 700,000 existing immigration cases.

According to Doyle, “The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance DHS’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.”

But does it faithfully execute the statutory enforcement provisions in the Immigration and Nationality Act (INA)? The U.S. Constitution has a Take Care Clause which provides that the president “shall take Care that the Laws be faithfully executed.” 

Supreme Court decisions have held that the Take Care Clause imposes a duty on the president to ensure the officials in his administration obey Congress’s commands.

In a recent lower court decision, a federal judge granted a motion from the State of Arizona for a preliminary injunction to prevent the implementation of some of the provisions in Biden’s enforcement guidelines.

The judge noted that the guidelines provide that immigration officials “should not rely on the fact of conviction or the result of a database search alone” when making an enforcement-related decision, such as whether to detain or deport a migrant who has committed a criminal offense. They must weigh the aggravating and mitigating factors against each other.

But INA section 1226(c) mandates the detention of immigrants who have “committed” certain enumerated offenses, and INA section 1227 provides that immigrants convicted of certain criminal offenses “shall” be removed.

Consequently, the judge concluded that Arizona is likely to prevail on its argument that the guidelines include unlawful provisions.

What has Doyle accomplished?

In the first six month of fiscal 2022, the immigration courts received 432,403 new cases and only completed 143,739. This means that so far in fiscal 2022, the backlog has increased by 288,664 cases. It won’t take long at that rate to replace the 700,000 cases the administration expects to withdraw from the immigration court docket.

Moreover, there may be a flood of illegal crossers next month. Biden has terminated the Title 42 order that permits CBP to expel illegal crossers without the processing ordinarily required by the provisions in the INA. The termination will be effective on May 23.

Sen. John Cornyn (R-Texas) said on Twitter that, “Dropping Title 42 without other changes in border policies will produce a tsunami of migrants & drugs.” 

DHS officials are preparing for the possibility of as many as 18,000 border apprehensions per day when the order is lifted.

A federal judge has issued a temporary restraining order prohibiting changes to the Title 42 order, which is set to last two weeks, but it can be extended, which could prevent the administration from lifting the order on May 23.  

Immigration polls

According to the results of a Rasmussen survey released this week, 78 percent of Republican voters believe the Biden administration is purposefully encouraging illegal immigration, as do 30 percent of Democrats and 45 percent of unaffiliated voters.

And a Gallup survey released a week ago indicates that 41 percent of Americans are worrying a “great deal” about illegal immigration, with another 19 percent worried a “fair amount.” This means that 60 percent worry a sizable amount about the issue.

Also, the percentage of political independents worrying a great deal about illegal immigration has risen from 30 percent in 2018, to 39 percent now.

This could be a problem for Democrats. The outcome of the upcoming midterm elections will serve as a referendum on Biden’s first two years in office. Moreover, midterm elections rarely end well for the president’s party. It almost always loses seats in the House, and the outcome is not likely to be much better in the Senate.

This means that the Democrats probably will not be able to maintain their razor-thin majority in Congress.

But even if the Republicans gain a strong majority in the House and enough votes in the Senate to stop a filibuster, they still won’t be able to make the executive branch enforce the immigration laws while Biden is in the White House.

It’s apparent to me that he does not want to enforce them: He’s been undermining enforcement since his first day in office.

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

Can Biden get away with not enforcing the immigration law?

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