BIDEN ADMINISTRATION INSTRUCTS ICE TO
IGNORE THE LAW AND THEIR OATH
By Tom Homan
On Jan. 20, Acting Department of Homeland Security (DHS) Secretary David
Pekoske sent an operational memorandum to the leadership of U.S.
Immigration and Customs Enforcement (ICE), Customs and Border Protection
(CBP), and Citizenship and Immigration Service (CIS). This memorandum
functionally ends all immigration enforcement and will result in dangerous
criminals escaping justice and walking the streets.
The memorandum instructs the agencies to ignore the law as referenced in
the Immigration and Nationality Act (INA), a law enacted by Congress and
signed by a president. It directs them to ignore written statute and a
federal judge’s order regarding a person that has had due process at
great taxpayer expense. Both of these instructions clearly represent a
violation of the law.
A federal judge in Texas has put a 14-day stay on the memo going into
effect, but that needs to be extended. Here’s why.
The memo will result in career law enforcement officers having to ignore
the oath they took to enforce the law. What is even more disturbing is when
I looked at the memo’s properties, it appears to have been written by
Esther Olavarria, whom I consider to be an anti-immigration enforcement
advocate — and who now serves as Biden’s deputy director of the
Domestic Policy Council for Immigration.
This document was crafted in a vacuum and was not coordinated or discussed
with the career operational personnel who understand the realities of
enforcing immigration law. It was so quickly written — with a desire to
end immigration enforcement immediately — that they sent it out with
typographical errors and failed to clean the properties that showed who
wrote it. Those involved with this memo and its issuance will have a heavy
burden to bear when the alien criminals it protects reoffend and innocent
victims are raped or killed as a result.
What’s even more unbelievable is that the Acting Secretary of Homeland
Security signed it and issued it. This memo is the most anti-law
enforcement and pro-criminal instruction I have seen in my nearly 35 years
of enforcing state and federal law. It protects serious public safety
threats, including gang members who will continue to victimize our
communities and citizens. It is a community safety nightmare.
Let me be very clear: This memo will result in lives lost. People will die.
Here are the exact consequences of this memo. Anyone who entered this
country in violation of law prior to Nov. 1, 2020 cannot be removed. Even
though they violated the law of illegal entry, or entered after being
deported, which is a felony, they get a pass for at least 100 days and
probably forever. The only exceptions are those involved in terrorism or
who have agreed to be removed, which is not likely going to happen. There
is no exception for rapists, child predators, murders or any other serious
If you look at ICE arrests in 2020, which were down over 30 percent because
of COVID restrictions, they arrested 103,603 aliens. The various crimes of
which these aliens had been convicted include: 1,800 homicides, 1,600
kidnappings, 3,800 Robberies, 37,000 assaults and over 10,000 sex crimes.
The people deported had a total of more than 374,000 criminal convictions.
As of the Jan. 20 memo, these types of aliens will no longer be removed.
These serious public safety threats will remain free and cannot be deported
— even though a federal judge has ordered them deported.
Let me cite an example: Let’s say ICE knows where an MS-13 gang member is
living. He has a removal order issued by a judge. He has entered the
country numerous times illegally. He has a conviction for child rape, but
because he entered the U.S. before Nov. 1, 2020, ICE cannot arrest and
remove him. They cannot execute a federal judge’s order. The dangerous
gang member is shielded by the Biden administration’s memo.
Another part of the memo instructs that ICE will no longer be allowed to
take custody of criminals that are being released from jails and prisons
unless those released have convictions for an aggravated felony, among the
most serious felonies. That means if the jail releases an illegal alien
that posts bond for a rape charge but has not yet been convicted, ICE
cannot arrest, take custody or even process him for immigration court
Being in the country illegally is no longer enough reason for ICE to
enforce the law. But here’s the catch: Even if the alien has a conviction
for an aggravated felony, he still cannot be deported if he was in the
country prior to Nov. 1, 2020. Sheriffs will have no choice but to release
dangerous criminals back into your community to reoffend.
On top of all of this, Congress has defunded ICE by more than $300 million,
so the agency can only afford 31,500 adult detention beds, a 40 percent
decrease. Not only are criminals that are already here safe from arrest and
deportation, but those that enter the country illegally after Jan. 20 will
not likely be detained because there are not enough beds. We are back to
catch-and-release at a time when we are struggling with a global pandemic.
An anti-borders agenda that includes catch-and-release is not a serious
COVID response at all. It will result in the intentional importation of
thousands of COVID cases.
The anti-borders advocates now in control of our immigration laws will
cause great harm to our communities. Crime will rise, people will be
victimized, and some will die at the hands of criminals the Biden
administration has chosen to protect.
This memo will also add to all the other enticements that President Biden
has promised, including amnesty, ending the Remain in Mexico Program, a
moratorium on deportations and free health care for illegal aliens. The
border will soon be out of control because of these promises.
The biggest insult of all is that this memo says all of DHS law enforcement
are needed to reprioritize because they must deploy and surge to the
southwest border to deal with “significant operational challenges.”
What they failed to mention is that this administration — because of its
own words and actions — is directly responsible for the out-of-control
border situation that has already begun.
_Tom Homan is the former Acting Director of Immigration and Customs
Enforcement and a senior fellow at the Immigration Reform Law Institute._