At the end of September, Secretary of Homeland Security Alejandro Mayorkas issued a memo to Immigration and Customs Enforcement officials laying out new guidelines for enforcing immigration law. Mayorkas’s memo would exempt from deportation most illegal immigrants who entered the United States before November 2020 unless they had some connection to terrorism or had engaged in serious criminal conduct. The new approach could both worsen problems at the southern border and make a badly needed political settlement on immigration harder to attain.
The word “immigrant” does not occur once in Mayorkas’s memo. Instead, he classifies illegal immigrants as “undocumented noncitizens.” Mayorkas declares that “the fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” Under the terms of the memo, someone being in the country illegally would not be sufficient reason for the federal government to pursue deportation.
This memo thus places a number of serious restrictions on immigration enforcement. Deportation efforts would be initiated only for individuals falling into one of three categories: a threat to border security, a threat to national security, or a threat to public safety. Under the “threat to border security” classification are people currently trying to cross the border or who “unlawfully enter[ed]” the United States after November 1, 2020. (It seems unclear whether those who illegally overstay a visa even after November 2020 would be eligible for deportation; they did not enter the country illegally in the first place.) “Threat to national security” covers individuals engaged in terrorism or espionage. The “threat to public safety” standard is relatively vague, though it usually involves “serious criminal conduct.”
The memo offers many justifications for not deporting even those convicted of serious crimes. Mayorkas lists “mitigating factors” that might mean enforcement should not be pursued, including whether the illegal immigrant had been in the country for a long period or whether his family members had served in the military. It also outlines a training program and “review process” to ensure that these restrictions on enforcement are rigorously followed, a feature Mayorkas stressed to media outlets.
Former president Barack Obama recently called “open borders” an “unsustainable” policy, and the Biden administration’s dialing back of immigration enforcement raises its own questions about sustainability. Since the administration terminated many of Donald Trump’s immigration policies, the American Southwest has witnessed an explosion of migrants making the dangerous journey to the border. The Biden administration has considered reinstating or at least maintaining certain Trump policies in an effort to stem the tide. But if Secretary Mayorkas publicly says “do not come” to those without legal authorization, his memo strongly suggests: But if you do come, you can stay.
This strategy of blanket non-enforcement may help the Biden administration achieve some policy objectives, at least in the short term. The White House so far has not been able to muster 60 votes in the Senate for a mass legalization, and congressional Democrats have not convinced the Senate parliamentarian that an amnesty provision somehow belongs in a reconciliation bill. Mayorkas’s memo laments the past failure of bills that would have offered a “path to citizenship or other lawful status,” so the administration will now take executive action where legislation has stalled.
But this approach has broader civic costs and reinforces malign dynamics that have transformed American politics over the past 20 years. The calculated refusal to enforce immigration law is of a piece with the broader politics of bad faith that have become endemic in American life. This refusal has nourished a shadow economy and created fertile conditions for smugglers and human traffickers.
The Biden administration has encouraged immigration flows in a way that further polarizes public debates. Its border policies and non-enforcement encourage further waves of unauthorized migration at the border and elsewhere. The greater the waves, the more overwhelmed American officials look, which encourages even more unauthorized migration. The mass encampments at the southern border worry many Americans; a recent Associated Press poll put Biden’s approval on immigration at 35 percent.
This spectacle of incapacity also makes developing a legislative consensus for immigration reform even harder. The failure of enforcement after the 1986 amnesty poisoned the well for future legislative compromises. Reviving the possibility of a consensus, especially for an amnesty, would require building trust that the law would ultimately be enforced—but such trust is not likely when the executive branch is unilaterally waiving enforcement efforts against the vast majority of illegal immigrants.
Under the right conditions, immigration policy can help energize a country, manifest the self-confidence of a political regime, and extend an open hand to the world. However, on both sides of the Atlantic, immigration has become a deeply divisive issue and helped spur the rise of populist movements. Reinforcing polarizing policies risks further political disruption.
Photo by Jordan Vonderhaar/Getty Images