Mayorkas’ New Policies Effectively Abolish ICE



During the Trump administration, progressive politicians and activists made abolishing Immigration and Customs Enforcement (ICE) a top campaign issue. Representatives Alexandria Ocasio-Cortez (D-N.Y.), Mark Pocan (D-Wis.), Pramila Jayapal (D-Wash.) and Senators Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), and Kirsten Gillibrand (D-N.Y.) all called on Congress to support legislation abolishing or otherwise reorganizing the responsibilities of ICE.

That was all before Joe Biden became president in January 2021. It turns out that the progressives did not need Congress to act at all. Through the use of two memoranda, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas used his power to abolish ICE. 

The memos do not abolish ICE in the literal sense – the agency is still an existing component of DHS. But the memos are a broadside against ICE’s purpose, and mark a total abandonment of immigration enforcement.

Mayorkas released the first memorandum on September 30. Titled “Guidelines for the Enforcement of Civil Immigration Law,” the document outlines new guidance to ICE officers for the apprehension and removal of illegal aliens. Relying on the doctrine of prosecutorial discretion, Mayorkas lays out the case for refusing to prosecute and remove most illegal aliens present in the United States. Mayorkas writes that “We do not have the resources to apprehend and seek the removal of every one of these noncitizens… In  exercising  our  discretion,  we  are guided  by the  fact  that  the  majority  of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years.”

Mayorkas declares that ICE will prioritize for removal only aliens who are a threat to national security, public safety, and border security. Threats to national security include those suspected of terrorism and espionage. The second category addresses threats to public safety, but includes exceptions if these violent criminals are of “advanced or tender age,” have lived in the United States for a “lengthy” period of time, have a mental illness that led to their criminal conduct, or whose removal would leave dependents behind.

This is remarkable. This policy will shield criminal aliens if they are elderly, have lived here for a long time, or who have children. Anyone who can claim some form of mental illness can remain, regardless of the lives their crimes shattered. Ignoring any sense that criminal aliens pose threats to U.S. citizens, Mayorkas ends by defending his actions by saying that: “The gravity of an apprehension and removal on a noncitizen’s life, and potentially the life of family members and the community, warrants the dedication of investigative and evaluative effort.” This much is clear: Secretary Mayorkas is very concerned about the well-being of criminal aliens and their families.

The final catch-all, “threats to border security,” include any illegal aliens apprehended in the U.S. who entered after November 1, 2020. This renders safe any illegal alien who happened to arrive before November 1, 2020. This is the equivalent of Mayorkas ordering DHS and its immigration enforcement components to throw in the towel. It is difficult to prove time-of-entry and the Biden administration already made it clear they intend to remove as few illegal aliens as possible. This third point is nothing more than a paper tiger.

Mayorkas released the second memorandum on October 12. The document, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual” bars ICE from conducting worksite enforcement. This is a crucial aspect of ICE’s work, and reverses gains made under the Trump administration.

Worksite enforcement is a crucial tool that ICE used to detain large numbers of illegal aliens at once while also holding accountable the unscrupulous employers who choose to hire them instead of Americans. Illegal aliens come to the U.S. for one reason – to work and make money. In an ideal world, worksite enforcement would be the preferred way to identify and remove illegal aliens while cracking down on the employers who hire them.

Addressing the memorandum, FAIR’s president Dan Stein stated that:

The 1986 Immigration Reform and Control Act (IRCA), which then-Senator Joe Biden voted for, explicitly prohibits the employment of illegal aliens. The stated intent of the law was to cut off the magnet of jobs that draws illegal aliens to the U.S., and protect the jobs and wages of American workers. As president, Joe Biden’s policy is precisely the opposite: to draw as many illegal aliens as possible to the United States, no matter the cost to national security, public health, burdens to taxpayers, or the jobs and wages of American workers.

This policy does just that. It encourages additional illegal immigration by promising that ICE will not investigate or prosecute the employment of illegal aliens. Instead of allowing ICE to do its job and prosecute employers and illegal aliens, this memo empowers employers who run afoul of existing law and shields illegal aliens from deportation.

Taken together, these two memos destroy ICE’s capability to enforce our immigration laws in the interior of the country. Ask yourself – what can ICE do with these policies in place? They cannot prosecute employers who hire illegal aliens. They cannot conduct worksite enforcement investigations to detain illegal aliens working in the U.S. without authorization. They can detain only the most extreme of criminal aliens, and even then there are carve-outs. Are there any illegal aliens in the United States not shielded by these two policies, aside from terrorists?

With the stroke of a pen, President Biden’s DHS secretary – Alejandro Mayorkas – all but abolished the effectiveness of ICE.

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