Last week, Congress voted to impeach Department of Homeland Security (DHS) Secretary Alejandro Majorkas. On the grounds of his alleged failure to address the growing crisis at our southern border. Leaders of the effort specifically equated his alleged use of the Immigration and Customs Enforcement’s (ICE’s) “catch and release” long-standing policy with a “high crime and misdemeanor”. The move capitalizes on America’s historical wariness of immigration, while at the same time not understanding the complexities of our immigration system.
A recent poll conducted by professors at Monmouth University revealed that the subject of immigration is once again the number one issue on voters’ minds, who universally express dissatisfaction with the government’s handling of the humanitarian crisis at our southern border. Americans are feeling and seeing the effects of the present situation in all its forms, from immigration camps forming in cities to a strain on local social services and government agencies, as well as the overall economy, which is imminently affected every time there is a sharp increase of vulnerable populations.
But is either side of the aisle looking at the issue holistically or productively? Or is immigration simply being scapegoated and turned into a handy election-year wedge issue once again? In light of Congress’ failure to pass any of the proposed bipartisan immigration reforms discussed over the past year, as well as the recent impeachment efforts against Secretary Majorkas, seasoned immigration practitioners fear that the issue is merely being oversimplified and misrepresented.
The solution to our systemic problems at the southern border, for example, is far from one extreme (deport everyone) to the other (welcome everyone). One must understand and study the issue wholistically for its wide range of complexities, systemic limitations, challenges, and benefits being forming an educated and practical position.
Regrettably, the present discourse does not indicate, and has rarely indicated in the past, that the powers that be, on either side of the aisle, have made the effort to study the data and consider all socioeconomic factors that have triggered the mass immigrant waves we have seen over recent years. The result has been the creation of further division across the political spectrum on the role and rights of an ever-present building block of American society and economy, and the exploitation of this division as a political pandering point.
Regardless of where one falls on the political spectrum, and where any one of us stands on general issues of human and immigrants’ rights, the resolution of the present crisis at our southern border requires, at a minimum, a basic understanding of the comprehensive factors and limitations that DHS must operate under or has no control over. Secretary Majorkas’ authorization of “catch and release” is a perfect example.
The practice of “catch and release” pre-dates the creation of the Department of Homeland Security. It is leveraged by ICE officers to help triage the influx of foreign nationals and to better identify potential risks to our national security and our people’s well-being. Candidates for “catch and release” are individuals who have no criminal history and likely arrive with children. They are issued Notices to Appear before an immigration judge, who determines whether the foreign nationals have any avenues for relief or a path toward legalization.
On the other hand, individuals who are repeat immigration offenders, have a criminal history, or are otherwise deemed a threat to national security are considered a priority for ICE. These individuals are arrested and detained at ICE facilities pending their immigration hearings or in many cases, their expedited removal from the United States. The practice aims to protect the American public from those who pose a real danger to both our well-being and economic stability. It has actually been quite successful throughout the years. By and large, criminal acts in the United States are not committed by undocumented immigrants.
Additionally, little is said in either the media or by our governing representatives on the issue of why ICE must rely on “catch and release”. Little discussion is had about the resources the agency has to be able to scale its operations to the liking of Congress. For example, ICE currently has the capacity to house approximately 34,000 detainees daily based on their own reports. While the number sounds impressive at first glance, we need to also account for how long a detained individual often must remain in ICE custody while their case works its way through immigration court and the appeals process. Sometimes, it can be years, as is well-exemplified by a popular reality TV star’s, Joe Giudice, experience with the system after his tax fraud conviction and sentence completion.
Simply put, ICE does not have the resources, and our system is not scaled to allow for the daily detention of more than 34,000 individuals, unless of course, we are willing to live with the horrific sites we witnessed when children and parents are separated at the border and detention camps were overcrowded with mostly innocent people sleeping on cold floors, using aluminum foil as blankets or pillows. The majority of Americans agreed that an all or nothing approach was never going to work based on the inhumane conditions it created. So, what could? A well-funded agency, with set priorities and prosecutorial discretion; an independent immigration court system, one where judges are respected for the importance of the work and service they provide to the American public; and perhaps, attention to the socioeconomic factors plaguing the countries we currently experience the greatest influx from so our foreign policy can alleviate those conditions as well. Unfortunately, that comprehensive plan is yet to be formulated as our priorities on immigration appear to still be leveraged against our diplomatic relations and interests with countries that have never really created much of an immigration issue for our country. While we wait, as voters we can at least make up our minds and take our stance with more conviction and a better understanding of the issues DHS and ICE are facing.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the March 6, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
