Per a scoop from Axios, the Biden Administration is launching an expansion of their attempt to release seemingly every illegal immigrant they encounter. This time they are expanding “Alternatives to detention (ATD)” with the aim of having most aliens released and on some “stricter” form of monitoring like a version of house arrest. Often, we have seen the Biden Administration suggest that limited resources require them to not investigate or apprehend most illegal aliens in the interior of the country. But what isn’t really asked by Axios, and most media, is how resources are so limited that DHS cannot be expected to do their statutory duty, but yet has seemingly limitless resources to release, monitor, and manage hundreds of thousands of aliens released into the United States.
Though some Biden supporters have expressed disappointment with President Biden in other policy areas, he has largely kept his repeated promises to open the borders and remove all enforcement measures that might deter migration and protect the American public. The article says that ATD programs consisted of roughly 35,000 people when Biden took office. As of last weekend the Biden Administration increased that number to at least 179,000 (this number only reflects the head of household).
To be fair, the border crisis caused by the Biden Administration explains some of this number. However, this type of massive expansion of ATD has happened as courts have raised more concerns in rulings about the Biden Administration’s unlawful use of executive authority on immigration. This is important because there are clear statutory requirements for DHS to detain many aliens and the number of aliens that are released and then abscond from court dates is depressingly high. All of this before we mention the public health and safety issues that arise from population influxes in communities unprepared to accommodate them.
The problems with this policy are legion. It is a further step in dismantling the enforcement infrastructure in immigration law. That means it is more likely that threats to health and safety are released in American communities. The likelihood of release into the interior of the United States, even if you are apprehended, only creates more incentive to make the dangerous and costly journey to the border where sexual assaults and rapes are common for women and children. We are witnessing the result of these policies every day. The numbers at the border increase in response to the reduced likelihood of removal. As the numbers rise, the agency is increasingly overwhelmed. This leads to even further degradation of enforcement. That will serve as yet a brighter beacon for those seeking to enter the country from around the globe.
However, I wanted to raise one issue that, from a legal standpoint, I’ve been arguing needs much closer scrutiny from judges across the country. The Biden Administration has been arguing that they had to dismantle immigration enforcement because DHS lacks the resources to investigate, apprehend and deport the large number of illegal aliens currently residing in the country. Time and again, DHS has stated that they create enforcement guidelines because of a lack of resources that constrain their ability to follow the law. Out of the other side of their mouth they are talking about expanding discretionary employment authorization programs. They are also expanding the number Asylum Officers and dedicating more resources while vastly expanding their authority. DHS reinstituted the Central American Minors program (CAM) this past year to take applications to allow some people to beat the traffic at the border and fly to the United States. The government moved at bureaucratic warp speed to draft and submit a rule to replace the forever legally in limbo Deferred Action for Childhood Arrivals (DACA) memo after recent court rulings placed it in jeopardy.
What isn’t mentioned in these herculean programmatic efforts is any lack of resources constraining this vision of DHS as the complimentary concierge of the United States. Each program expansion requires creation and approval of forms for applications and the creation of a process to accept and review applications. Each program will likely receive thousands of applications all of which must be reviewed and considered. New policy memos and guidance will have to be vetted and approved. Applicants will have to be located and notified of decisions and provided appropriate documentation.This mountain of work has been added to already backlogged and burned out staff. Astronomical backlogs for applications are becoming the norm across the immigration landscape. All of this to say that DHS is expanding programs creating these new resource burdens at a rapid rate in the context of clear irrefutable evidence of resource constraints. How, for example, can USCIS credibly say they need a policy of deference to previously approved applications to save time while producing a rapid increase of policy memos and regulations that simultaneously dramatically increase the agency’s workload? Do courts pretend this isn’t happening while at the same time the same agency cries poverty when sued for lack of even a good faith attempt to enforce laws that protect communities?
In this particular instance of expanding ATD, keep in mind that Immigration Customs and Enforcement (ICE), runs ATD. That is the same ICE that says it has so few resources that almost all aliens are exempt from prosecution as a matter of policy. That impoverished ICE also can monitor and manage 179,000 illegal aliens (as Axios points out that number is much higher in reality because it does not take into account all aliens in a household), scattered across the country.
The obvious question is how can both of those things be true? How can ICE have so few resources that most aliens in the country illegally are exempt from prosecution, and yet that same ICE at the exact same time has expanded ATD so aggressively that it went from 35,000+ to 179,000+ in essentially a year? How can ICE effectively monitor and manage 179,000+ aliens across the country, but not hold aliens in detention? The most likely answer to that last question is that ICE isn’t effectively monitoring. The ankle monitor is not inescapable and many aliens have absconded from ATD. And shockingly, ICE has moved to not even including ankle bracelets and instead are moving steadily to check-in apps on phones. So, for absconders, you don’t even have to cut off an ankle bracelet. ICE is always thinking of ways to make it easier to escape their grasp. In fact, detention turns out to be the most cost effective and efficient way to monitor the population while, importantly, also ensuring they do not go AWOL. If your job was to ensure 179,000+ illegal aliens were present at their court dates would you release them into the public with a phone app and a prayer or keep them in custody? The only way ATD makes sense as a broad policy is if you ignore the duty to ensure participation in removal proceedings. Which is basically the bureaucratic way of saying Abolish ICE. Yet this is the argument made by the President and DHS to the public. The polling shows the public is recoiling in horror from the absurdity they see. The only question is if judges will persist in stubborn fidelity to deference to government claims in these policy instances. Because it is becoming increasingly clear that the Biden Administration is either blind to the consequences of their policies or those consequences are the intended goal.
The question attorneys challenging the government need to ask is how courts can take the government’s pleas of poverty of resources seriously when it only applies to policies they oppose? It is inappropriate, and courts must say so, for the government to use the genuine argument of scarcity of resources in a bad faith effort to skirt statutory requirements and rewrite the law to fit their own preferences. For too long, courts have largely accepted these limited resource claims at face value as a justification for agency discretion. But a government claim of lack of resources is a fact dependent question. There is an objective answer to availability of resources and the government should have to show their work. It is up to advocates to push courts to acknowledge the clear facts that the government has abused deference provided by courts. Presidents have been using the judicially provided shield of resource constraints as a sword to slash statutes they oppose. This makes a mockery of our entire system and plainly has led to calamity at the border. From the legal perspective, an effective challenge that moved judges to more carefully consider resource scarcity claims in full context of agency action could be key in carving a foothold for many policies that have escaped judicial review in the recent past.
JARED CULVER is a Legal Analyst for NumbersUSA
