No one wants to negotiate with a gun to their head
Center for Immigration Studies
In a January 22 post, my colleague Jessica Vaughan analyzed a 100-day immigration enforcement moratorium put in place by the Biden administration, in one of its first acts. The memorandum laying out that moratorium all but eviscerates immigration enforcement in the United States, as Vaughan noted. It is a dangerous — but perhaps inevitable — gambit, as the new administration pushes a massive amnesty for almost every alien unlawfully present in the United States.
To recap that memorandum announcing a 100-day “pause”, beginning February 1, there will be just three “priorities” for immigration enforcement generally: national security threats, aliens who crossed the border illegally on or after November 1, 2020, and aliens convicted of an “aggravated felony” who are “are determined to pose a threat to public safety”.
That applies not just to removals (aliens who do not fall within one of the priorities will not be removed as of January 22), but to arrests and detentions of aliens who are not a “priority”, as well. That means that nonimmigrant overstays (who make up the majority of aliens illegally present in the United States), aliens who have received due process and are under final orders of removal, and criminal aliens who are not a “priority” will get off scot-free, at least for the next three-plus months, and likely longer.
In other words, in all but the most extreme cases, there will be no immigration enforcement in the United States at all.
But as my colleague Mark Krikorian explained recently, there are no immigration reforms in the proposed amnesty, either. What gives?
Usually, at least a window-dressing of enforcement precedes an amnesty proposal. Why were there almost 370,000 removals in FY 2008? Then-President George W. Bush wanted an amnesty. Why were there almost 410,000 removals in FY 2012? Then-President Obama wanted one, too.
The legislative strategy traditionally has been to show that you are serious about enforcement, and then argue for amnesty for aliens brought to the United States as minors, or for parents of children born here, or for “otherwise law-abiding” aliens illegally present.
Perhaps the Biden administration has decided that this was not a winning tack (there was no Bush or Obama amnesty), and opted to go in the other direction. I am not privy to its deliberations and tactics, but if it has opted to use enforcement (or more precisely, a lack thereof) as a bargaining chip to get a massive legalization bill passed, it will likely backfire.
I have worked on Capitol Hill, and drafted and negotiated legislation that has become law, so I would like to think that I have a certain level of expertise in the crafting of proposals into laws. No one wants to negotiate with a gun to their head, and some Democrats facing tough re-election campaigns in the 2022 off-year elections may have to take a walk on this one.
That said, the Biden administration may have felt that it had no choice except to halt almost all immigration enforcement. If you plan on giving status to everyone except a handful of aliens illegally present as of an arbitrary date, it is inconsistent to arrest — let alone remove — them before that amnesty takes effect.
Why? Because that means that the legislation will either exclude those removed or expressly let them back into the United States (or worse, have the American taxpayers pay to fly them back). In legislative terms, the “optics” of such returns are bad, and hard to defend.
But again, the Biden non-enforcement strategy is risky. Some crimes are victimless in the abstract, but there are a lot of victims of the crimes for which those aliens will not be removed.
Consider, for example, DUI, which is not actually a ground of removability and would — except in the most extreme cases — not fall within one of the new “priorities” for removal. I would regularly see respondents on my docket as an immigration judge who had entered illegally (and therefore were removable) and come to ICE’s attention after a DUI arrest, however. Read the rest here.
