Four Senate Republicans are questioning the Biden administration's response to breaking up a yearslong backlog of immigration cases at the U.S.-Mexico border — through the seemingly subjective process of deporting only migrants who pose a public safety or national-security threat.
Sen. Rick Scott, R-Fla., wrote the letter on behalf of three other GOP senators and himself to request clarification on an Immigration and Customs Enforcement (ICE) memo from April that encouraged prosecutors to use their discretion to pursue cases against those deemed a higher-priority threat, while conversely not initiating or dismissing cases against those who are not.
Scott and the other Republican senators also sought the logic behind Homeland Security Secretary Alejandro Mayorkas' instructing ICE officials to focus its immigration-authority efforts on those crossing the border with a criminal record, or otherwise pose a threat to national security — instead of processing every unlawful crossing of the southern border.
"This misguided policy prioritizes artificially lowering the backlog of immigration court cases above enforcing our immigration laws enacted by Congress, and represents a gross abuse of prosecutorial discretion," wrote Scott in the letter co-signed by fellow GOP Sens. Josh Hawley of Missouri, Ron Johnson of Wisconsin and Rand Paul of Kentucky.
"Under the guise of exercising 'prosecutorial discretion,' the Doyle Memorandum proposes the mass dismissal of these pending deportation cases against aliens who are unlawfully present in the United States and otherwise subject to removal for violating our immigration laws," Scott wrote.
"Turning a blind eye ... will encourage further illegal immigration and embolden criminal aliens already unlawfully present in our communities."
Scott was specifically referencing Kerry Doyle, ICE's principal legal adviser, in the above quote.
Here's the memo passage in question:
"Attorneys must be particularly mindful of the resource constraints under which we operate at a time when the immigration courts' dockets total over 1.5 million cases nationwide. Sound prioritization of our litigation efforts through the appropriate use of prosecutorial discretion can preserve limited government resources, achieve just and fair outcomes in individual cases, reduce government redundancies, and advance DHS's mission of administering and enforcing the immigration laws," wrote Doyle in the memo.
The Doyle memorandum noted the 1.5 million case immigration court backlog. However, that figure has recently ballooned to 1.7 million immigration cases.
The DHS memo outlines a series of subsequent tests for ICE attorneys to implement. They will reportedly have the option to dismiss or remove cases from the court docket altogether, along with choosing not to file a "notice to appear in court."
The Scott letter also took exception to four redacted sections in the public version of the ICE memo. What's more, the four senators demand to know the immigration status of those whose cases are never heard in court.
"Does dismissal or administrative closure confer upon the alien a lawful immigration status? If so, how long is such lawful presence valid? If not, does the individual remain in a deportable status?" asked Scott, Paul, Johnson and Hawley.
The Biden administration's approach to handling outstanding immigration cases represents a major departure from that of the Trump administration, which prioritized every case involving migrants at the southern border.
"The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” Mayorkas wrote in a memo last year.
"It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States. We do not have the resources to apprehend and seek the removal of every one of these noncitizens."
It's worth noting that last week, a DHS memo revealed that an additional $2 billion of government funding would be required to handle the anticipated spike of unlawful crossings.
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