‘Deportation’ Is Not a Dirty Word

By Andrew Arthur

Thursday, October 24, 2024

 

Recent disclosures by U.S. Immigration and Customs Enforcement (ICE) that hundreds of thousands of criminal immigrants are at large in the United States raise the question of why the Biden-Harris administration isn’t doing more to remove them. Increasing deportations is a necessary part of fixing what Vice President Kamala Harris refers to as “our broken immigration system.” She is right to describe it that way. But the administration in which she serves was the one to break it, not least by impeding ICE deportations.

 

Currently, about 1.3 million aliens under final orders of removal — those who have received due process and been ordered deported — are on ICE’s “non-detained docket” of 7 million individuals. These individuals include criminal aliens, whom Congress has directed ICE to detain and remove. But ICE can’t remove many of them because they’re from so-called recalcitrant countries — nations that refuse to provide the U.S. government with the travel documents it needs to facilitate the return of their nationals. The Supreme Court has held that, with only narrow exceptions, even detained criminals due to be deported must be released after six months absent a “significant likelihood of removal in the reasonably foreseeable future.” If ICE can’t get their travel documents, there’s no likelihood of removal.

 

Fortunately, Congress gave the Department of Homeland Security (DHS) a tool to force recalcitrant countries to comply. Unfortunately, the Biden-Harris administration won’t use it. Under section 243(d) of the Immigration and Nationality Act (INA), once DHS notifies the State Department that a foreign country “denies or unreasonably delays” the return of its nationals, the secretary of state must “order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both,” to nationals of that country. The George W. Bush and Obama administrations used that authority sparingly, each restricting visa issuance to just one country in order to force compliance. As my colleague Mark Krikorian recently noted, “Trump made much wider use of it, and got results.”

 

Slow-walking visas as a pressure tactic isn’t the current administration’s style. Can you imagine, though, how quickly China and India — both deemed recalcitrant — would provide travel documents if U.S. consular officers stopped issuing student visas in Shanghai and Bombay, even for a day?

 

It’s not just Beijing and New Delhi that are impeding ICE deportations, however. The much bigger hurdle is at home. Following earlier Biden-Harris directives (including a 100-day moratorium on “certain removals” that was quickly shut down in the courts), DHS secretary Alejandro Mayorkas in September 2021 issued burdensome “guidelines” with which ICE officers and attorneys must comply before taking “enforcement action” — that is, before investigating, arresting, detaining, prosecuting, and deporting facially removable aliens. Those guidelines require ICE officers to consider “mitigating factors” such as the alien’s “advanced or tender age,” family ties, and length of presence in the United States, and even whether any of the alien’s family members work for the government.

 

Largely ignored in discussions of the hundreds of thousands of criminal aliens on ICE’s non-detained docket is that the Biden-Harris administration fought — all the way to the Supreme Court (where the federal government ultimately prevailed, in June 2023) — state suits that would have forced ICE to detain them. The Court didn’t deny that DHS is obligated to detain criminal aliens; rather, it concluded that third parties — including the states — lacked standing to sue.

 

Mayorkas claims that the guidelines he issued aim to preserve limited agency resources by prioritizing deportable aliens for removal. But that’s a canard. His new requirements waste time and resources, and in practice they’ve degraded ICE’s ability to remove any but the most dangerous criminal aliens.

 

Just look at DHS’s own statistics, which reveal that the department deported more than 976,000 aliens in the first 36 months of the Trump administration. By comparison, in the first 36 months under Biden and Harris, DHS deported fewer than half that number — 438,000 in total. ICE removals of criminal aliens show a similar pattern over those respective 36-month periods. Trump: nearly 761,000. Biden-Harris: fewer than 335,000. The Covid-19 pandemic likely hindered DHS’s removal efforts. The massive surge of illegal border crossings that started shortly after Inauguration Day 2021 implies that the total population of removable aliens rose significantly as well, giving ICE more aliens to deport.

 

With the election nearing, removal efforts have (unsurprisingly) picked up: Between February and June 2024 (the latest month for which numbers have been reported), ICE removed or returned more than 113,550 aliens. If you think this enforcement push will last, you’re in the minority. Fifty-nine percent of registered voters whom Harvard’s Center for Political Studies and the Harris Poll surveyed in late June believed that the administration’s recent immigration-enforcement efforts were “driven by electoral politics” and would “be reversed” after the election.

 

Deporting removable aliens is the first step toward fixing our immigration system. As the late Barbara Jordan — civil-rights icon, former congresswoman, and then-chairwoman of the U.S. Commission on Immigration Reform — explained to Congress in 1995:

 

Deportation is crucial. Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave. . . . For the system to be credible, people have to be deported at the end of the process.

 

Jordan’s reasoning is sound. Any enforcement action — investigation, arrest, detention, or prosecution — is just theater if people aren’t “deported at the end of the process.” The most serious problem, though, is the impact that a decline in interior enforcement has on the rate of border crossings. Aliens are more likely to cross illegally if they know they are unlikely to be removed. Their illicit entries can then overwhelm the Border Patrol and drastically reduce agents’ ability to keep drugs, terrorists, and criminals out of the United States.

 

Donald Trump has promised to implement “the largest domestic deportation operation in American history” if again elected, and the GOP’s 2024 platform states that the party will “deport the millions of illegal Migrants [sic] who [sic] Joe Biden has deliberately encouraged to invade our Country [sic].” Is such a plan feasible? More than critics would be likely to concede.

 

Any deportation program would start with the lowest-hanging fruit — the roughly 1.3 million aliens under final orders of removal and the hundreds of thousands of criminal immigrants at large. Obtaining travel papers from recalcitrant countries might not be a problem under a second Trump administration, which would not be shy about imposing visa sanctions. As for detention space, county jails have plenty, and they traditionally have been more than willing to rent empty beds to DHS for a reasonable price. (My old courtroom was in a county jail when I was an immigration judge.)

 

For the rest — noncriminal aliens who are not under removal orders but have nonetheless entered the country illegally — current law offers many options.

 

Under section 263 of the INA, the DHS secretary can require any alien without a green card to submit to registration and fingerprinting. Failure to comply with registration would be a federal crime, carrying a six-month sentence and/or a fine. Scofflaws could be entered into the National Crime Information Center, a computerized index of — among others — wanted fugitives that is accessible to law enforcement nationwide. Given that many of the 5.6 million illegal migrants waved in under Biden-Harris — and nearly 2 million other migrant “got-aways” — have disappeared into the country, such a requirement should be unobjectionable. “Sanctuary jurisdictions” might not cooperate with ICE in civil immigration enforcement, but federal criminal prosecutions are a different matter — especially when U.S. marshals with warrants come calling.

 

A registration scheme would also trigger voluntary departures. After the National Security Entry–Exit Registration System — a registration program focused solely on nationals of certain Muslim-majority countries — was implemented following September 11, 2001, DHS removed roughly 1,500 illegally resident Pakistanis. More consequentially, some 15,000 other illegal Pakistani immigrants opted to leave on their own.

 

The best way to force voluntary returns, however, would be to rely on E-Verify: an online system U.S. employers can access to confirm that would-be employees are authorized to work in the U.S. Currently, participation in E-Verify is largely voluntary (22 states require certain employers to use it), but the president could likely mandate universal E-Verify compliance by executive order. If those who are here unlawfully can’t work, few will remain. That’s simple economics.

 

Democrats and many in the media have spent four years conceding that our immigration system is broken but arguing that the only fix is for Congress to pass a mass amnesty coupled with a faint promise of future enforcement. But Congress has already provided the executive with tools to regulate immigration, legal and otherwise. All that’s needed is a president with the will to use them. Congress cannot legislate that, but, as the Supreme Court’s June 2023 decision noted, American voters can “hold elected officials to account.” On Election Day, perhaps they will.