Republicans plan to use Biden’s immigration enforcement policies against the Democrats in the upcoming midterm elections, and recent polls indicate many voters are worrying “a great deal” about illegal immigration — and that they think the Biden administration is encouraging it.

There are two Biden administration actions at the heart of the enforcement issue.

First, Homeland Sescurity Secretary Alejandro N. Mayorkas established enforcement priority categories with a Sept. 30, 2021, memorandum on Guidelines for the Enforcement of Civil Immigration Law:

A. Threat to National Security — Migrants who have engaged in or are suspected of terrorism or espionage, or who otherwise poses a danger to national security.

B. Threat to Public Safety — Migrants who poses a current threat to public safety, typically because of serious criminal conduct.

C. Threat to Border Security — Migrants who were apprehended at the border or a port of entry while attempting to unlawfully enter the United States, or who succeeded in making an unlawful entry after November 1, 2020.

Mayorkas restricted enforcement actions to migrants in one of these priority categories, but exceptions are permitted with preapproval from senior supervisors. According to Mayorkas, the fact that an individual is removable by law should not alone be the basis for taking an actual enforcement action against him.

The result is that there is little, if any, danger that a deportable migrant in the interior of the country will be put in removal proceedings unless he is convicted of a crime that makes him a threat to national security or public safety, or ICE knows that he entered unlawfully after Nov. 1, 2020.

This encourages illegal crossers to keep trying until they succeed in evading detection — or until CBP releases them into the interior of the country.

Extension of the guidelines

On April 3, 2022, Kerry E. Doyle, the ICE Principal Legal Advisor, issued a memorandum that took the enforcement guidelines a step further. She directed ICE lawyers to remove nonpriority cases from the immigration court docket. The preferred method is a motion to dismiss without prejudice.

In other words, the Biden administration — after limiting who can be prosecuted — has decided to simply dismiss pending immigration cases, allowing people to stay in country.

According to Doyle, “The exercise of prosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance DHS’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.”

But does it faithfully execute the statutory enforcement provisions in the Immigration and Nationality Act (INA)? The U.S. Constitution has a Take Care Clause which provides that the president “shall take Care that the Laws be faithfully executed.”

Supreme Court decisions have held that the Take Care Clause imposes a duty on the president to ensure the officials in his administration obey Congress’s commands.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at