Biden Administration Cannot Ignore Federal Law, Must Remove Illegal Alien Criminals: Court

President Joe Biden’s administration cannot ignore federal law that says authorities must arrest, detain, and remove illegal aliens convicted of certain crimes and/or aliens who are ordered deported, an appeals court has ruled.

Federal law says the attorney general “shall take into custody,” “shall detain,” and “shall remove” illegal aliens convicted of certain crimes and aliens who are ordered deported. But the Biden administration has attempted to prevent the holding and removal of some illegal immigrants convicted of those crimes.

“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” Homeland Security Secretary Alejandro Mayorkas, a Biden appointee, said in a memorandum in September 2021 outlining new guidance that narrowed immigration enforcement priorities.

Mayorkas also said that immigration agents should not “rely on the fact of conviction … alone” when deciding to take action against an alien.

That has led to a sharp drop in criminal aliens detained by the Department of Homeland Security (DHS), a panel of the U.S. Fifth Circuit Court of Appeals said. The memo and others like it has led to a spike in the rescinding of criminal detainers, or orders to local authorities to detain aliens, court documents show. One hundred and seventy aliens had detainers rescinded in Texas between Jan. 20, 2021, and Feb. 15, 2022, with at least 17 failing to comply with their parole conditions and four committing fresh crimes.

“The data show that the Final Memo ‘increases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,’ and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so,’” the panel said in a ruling dated July 6.

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