New DHS guidelines: Entering U.S. illegally is not enough to be arrested despite federal law saying it is

By Bethany Blankley | The Center Square

New guidelines issued by the Department of Homeland Security state that entering the U.S. illegally – violating immigration laws established by Congress – is no longer an arrestable offense.

“The fact an individual is a removable noncitizen, therefore, should not alone be the basis of an enforcement action against them,” DHS Secretary Alejandro Mayorkas said in a memorandum to Immigration and Customs Enforcement (ICE) officials. “We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”

In other words, violating federal law and entering the U.S. illegally, even though federal law defines the act as a crime, is no longer a crime, according to Mayorkas.

Under federal law, those living in the U.S. illegally without a green card or legitimate documents is grounds for removal.

Only those who pose a threat to national security, public safety, or a threat to border security should be targeted for removal, the new guidelines state.

The announcement comes after Florida Attorney General Ashley Moody sued the federal government over its “catch-and-release” policy, and Texas Attorney General Ken Paxton has nearly ten times sued the administration over immigration laws it doesn’t enforce.

Paxton has won two immigration lawsuits so far, one pertaining to an executive order halting deportations and another over the administration’s refusal to reinstate the Migrant Protection Protocols, known as the “Remain in Mexico” policy. Paxton is still pursuing the latter, as the Biden administration still hasn’t complied with a U.S. Supreme Court ruling instructing it to do so. In another lawsuit, Texas is demanding that the court mandate the administration follow Title 42 and stop releasing into the U.S. immigrants who entered the country illegally who have COVID.

A separate challenge filed by ICE agents and sheriffs over arresting and deporting illegal alien criminals is pending before the courts.

The Florida lawsuit primarily addresses the asylum process. Existing federal law requires that applicants be detained until their cases are ruled on. Under new DHS guidelines, those seeking asylum have been released into the U.S. and no real enforcement mechanism exists to make them attend a hearing. The process takes months, sometimes years, and historically, roughly half don’t show up to their hearings.

At least 225,000 people have entered the U.S. illegally claiming asylum who have been released, according to Customs and Border Protection data. Critics argue this number is far higher.

“Releasing this many arriving aliens into the interior necessarily means that the government is violating congressional commands in the immigration laws,” Florida’s complaint states.

“We are seeing dramatic effects at our border. It is an unmitigated crisis based on this president’s refusal to follow federal law. It’s in black and white, folks, and it’s not a president’s responsibility to decide whether he agrees with the law. In fact, the head of an executive branch must follow the law,” Moody told reporters at a press briefing.

Florida earlier this summer joined an interstate pact with Texas and Arizona and sent law enforcement to help arrest migrants committing state crimes along the Texas border. The compact is the first effort of its kind focused on illegal immigration. State law enforcement officials are actively arresting illegal immigrants committing state crimes, processing them in state and county courts, and detaining them in the county and state facilities.

Florida is asking the court to rule that the administration’s “catch-and-release” policy is unconstitutional and to comply with federal law. The administration argues the widespread release of migrants is lawful because they’ve been given notices to appear.

“We remain in touch with them. We monitor them to ensure their appearance in court at the designated time of appearance,” Mayorkas told reporters last week after he admitted that the majority of the Haitians who congregated last month under the Del Rio International Bridge in Texas were released into the general population and had not been tested for COVID-19.

U.S. Rep. Chip Roy, R-Texas, has called for Mayorkas to be impeached for blatantly ignoring and circumventing the U.S. Constitution, which he swore to uphold. The entire point of having a border and immigration laws is what defines national sovereignty, Roy said. Without a border, no nation and no sovereignty exists, he said.

U.S. Rep. Andy Biggs, R-Arizona, who filed articles of impeachment against Mayorkas citing dereliction of duty and not enforcing the law, continues to demand his immediate resignation.

The governors of Arizona, Florida, and Texas, all Republicans, continue to criticize the administration’s immigration policy, calling it a disaster that is wreaking havoc on their states.

Texas Gov. Greg Abbott said in a statement that Biden’s partisan reversal of Trump-era policies has “helped fuel the record surge in illegal migrants and contributed to an environment on the border that is neither safe, orderly, nor humane. … Biden’s policies, including his brazen attempt to reverse the MPP, have benefited the cartels and dangerous criminals at the expense of Texans [and Americans].”

Mayorkas says the guidelines will “require an assessment of the individual and take into account the totality of the facts and circumstances.

“In exercising this discretion, we are guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being, including those who have been on the frontline in the battle against COVID, lead congregations of faith, and teach our children. As we strive to provide them with a path to status, we will not work in conflict by spending resources seeking to remove those who do not pose a threat and, in fact, make our nation stronger.”

Unless halted by the courts, the guidelines are set to take effect on Nov. 29.

Arizona, Florida, Texas, and other states and groups are expected to sue.