Byron York’s Daily Memo: Biden’s quiet immigration move

BIDEN’S QUIET IMMIGRATION MOVE. Last week the Biden administration took another step in its drive to ease the way for illegal border crossers to stay in the United States. Hardly anyone noticed.

Homeland Security Secretary Alejandro Mayorkas announced that U.S. Immigration and Customs Enforcement (ICE) would no longer impose fines on people who are in the United States illegally, who have been ordered by a judge to leave the country, and who refuse to go. (The announcement called them “noncitizens who fail to depart the U.S.”) Mayorkas also announced that he would work with the Treasury Department to cancel the debts of those were fined under the Trump administration.

“There is no indication that these penalties promoted compliance with noncitizens’ departure obligations,” Mayorkas said in a statement. “We can enforce our immigration laws without resorting to ineffective and unnecessary punitive measures.”

But the fact is, the Biden administration is not enforcing U.S. immigration laws, or at least not imposing consequences on those who defy U.S. immigration laws. For more than 20 years, Immigration and Customs Enforcement has had the authority to impose fines on those who have been ordered to leave the country but refuse to do so. It wasn’t really enforced until President Donald Trump issued an executive order directing officials to begin collecting “all fines and penalties that the [Secretary of Homeland Security] is authorized under the law to assess and collect from aliens unlawfully present in the United States.” The fines levied could run up to $500 for each day the person refused to leave the U.S. after a court order.

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Even then, the Trump administration targeted only those illegal immigrants who had had full due process and had been ordered by a judge to leave the country. That meant cases that had been going on for years. And that meant that in 2018-2020, Trump officials imposed the fines on illegal immigrants the Obama administration had tried and failed to deport.

There were notorious cases. One involved a woman named Edith Espinal Moreno, who was born in Mexico and lived there until age 17, when in 1995 she entered the United States illegally with her father. She lived in Ohio for two years and then, in 1997, returned to Mexico. She lived three years in Mexico until she again entered the United States illegally in 2000. In 2009, the Department of Homeland Security — then under President Obama — began proceedings to remove her from the country. Moreno voluntarily left the U.S. Then, in 2013, she again attempted to enter the U.S. illegally, but was caught by authorities. When DHS again attempted to remove her, she applied for asylum, claiming fear of violence in Mexico. An immigration judge “found Moreno not credible,” according to court papers, and denied her application for asylum. Moreno appealed and lost again. By then, it was 2016. The case went up to the U.S. Sixth Circuit Court of Appeals, which denied Moreno’s appeal in July 2017. Moreno had no more options.

By then, the Trump administration had come to power and sought to deport people like Moreno, whose cases had been fully adjudicated and had no legal right to remain in the United States. Facing removal, Moreno moved into the Columbus Mennonite Church in Columbus, Ohio, which offered her sanctuary. ICE has a policy under which it will not stage enforcement actions in “sensitive locations” like churches.

In June 2019, Edith Espinal Moreno received a letter from Immigration and Customs Enforcement telling her she owed fines in the amount of $497,777. Activist immigration lawyers came to Moreno’s aid, suing the government and helping generate positive press coverage for her. Some accounts presented a simplified version of her life story (“Espinal said she came to the United States from Mexico with her father when she was 16” was all a National Public Radio report said about her complicated immigration history.)

Democrats in Congress pressured the Trump administration to let up. At a House hearing in 2019, Matthew Albence, the acting director of ICE, tried to defend the principle of actually enforcing immigration law. “If we’re going to have any integrity at immigration system,” Albence said, “I don’t think we can have a system whereby somebody can avail themselves of all due process, work the system for five, six, seven, eight years, and then they get a result that they don’t agree with, go take sanctuary in a church where they know our sensitive locations policy prevents them from having the law enforced against them.”

Albence explained that the fines did not apply to all long-term resisters. “Some of the individuals, when we located them, we arrested them and removed them rather than fining them because we knew where they were and were able to locate them,” Albence said. The fines, he continued, were focused on “individuals that we can’t locate or are unable to find or that take sanctuary.”

There were other cases in which fines could also be necessary. “They can be useful, and are especially appropriate, in the case of aliens who are making money after repeatedly entering illegally — like drug traffickers, human smugglers, cartel operatives, and other con artists,” says Jessica Vaughan of the Center for Immigration Studies, which favors more restrictive immigration laws. “Some people clearly are not deterred by the other penalties, which can include imprisonment, but which is not always sought. Something like 30 percent of ICE removal cases fall into this category, and we can’t send them all to prison, so a fine is a good type of penalty to use.”

The Trump policy was entirely reasonable, but under pressure the administration eventually backed down. In October 2019, it withdrew the fine against Moreno. It also withdrew the fines in several other cases similar to Moreno’s in which illegal immigrants hid in churches after exhausting all legal claims to remain in the United States.

In the end, Trump officials viewed the fines as a tool to against hard-core defiance of immigration law. If the point was actually to collect money, it apparently didn’t work very well — it’s unclear how many fines were collected, but some reports have said it was a very small amount. But the fines at least sent the message that defying U.S. law is wrong.

Now, under President Biden, that message has been withdrawn. ICE stopped issuing fines on January 20, 2021, at the moment of Biden’s inauguration. Secretary Mayorkas says the new administration will focus its enforcement efforts on “those posing the greatest risk to national security and public safety” as defined by new, lax Biden administration guidelines. And the message to those who defy U.S. law is that the new administration in Washington doesn’t really care.

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