Were immigration agents told not to detain ‘aggravated felons’? Here’s why that’s Mostly False

President Joe Biden has said that to decrease illegal immigration — which has reached historic highs under his administration — he needs more money to hire more border officials.

But in a June 30 "Fox News Sunday" interview, Rep. Michael McCaul, R-Texas, said funding isn’t the problem, Biden’s policies are.

"Because throwing money at this problem is not gonna fix it. It’s a policy change that needs to be effectuated," McCaul said, advocating for a Trump-era policy that required some asylum seekers to wait in Mexico for U.S. immigration court proceedings. Biden revoked that policy.

McCaul added: Homeland Security Secretary Alejandro "Mayorkas said: ‘Hey you don’t have to detain aggravated felons.’ Those are rapists, child predators, murderers. This is a reckless policy."

Other Republicans, including Rep. Mark Green of Tennessee, who chairs the House Committee on Homeland Security, have made statements similar to McCaul’s.

To back the claim that Mayorkas is exempting murders, rapists and child predators from immigration enforcement, McCaul’s spokesperson pointed PolitiFact to a September 2021 memo Mayorkas issued. It said people who threaten public safety should be prioritized for detention and removal. But a criminal conviction alone shouldn’t determine whether someone is a threat and each case should be considered individually, the memo said.

Republicans cited this memo in their articles of impeachment against Mayorkas, saying it defied immigration law. The House impeached Mayorkas in February in a 214-213 vote. The Senate later dismissed the impeachment articles.

Although that memo didn’t specifically say "aggravated felons" should be prioritized for detention and deportation, its guidance — to prioritize enforcement against people with serious criminal conduct — meant that immigration officials could still remove them from the U.S., experts said.

Federal law generally requires that people who enter the U.S. illegally be detained as they await immigration court proceedings. But because detention space is limited, some people are allowed into the country and told to attend immigration court proceedings later. People who cross the border illegally and have a criminal conviction in their country of origin are usually detained by U.S. immigration authorities.

The Department of Homeland Security also issues guidance memos for immigration officials, outlining the categories of people that should be prioritized for detention and deportation.

During Biden’s first days in office in January 2021, DHS explicitly said people who pose a public safety risk, including those convicted of an "aggravated felony," are a top enforcement priority. Rape and murder, the crimes McCaul listed, are aggravated felonies. (Immigration law also says people convicted of these crimes must be detained and deported.)

But federal courts banned the memo’s enforcement, saying the administration violated administrative procedure in implementing the memo. (The memo also paused deportations of nonprioritized people for 100 days.)

So, in September 2021, DHS issued a new memo. (Texas and Louisiana challenged this memo’s guidance in court, but DHS reinstated it in 2023 after a Supreme Court decision said the states did not have standing.)

The memo didn’t explicitly list as a detention and deportation priority people convicted of "aggravated felony." But immigration experts told PolitiFact that rapists and murderers would still be prioritized for detention and deportation under this new memo.

The memo said "a noncitizen who poses a threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal," and gave officials the discretion to detain and deport accordingly. 

Whether someone poses a threat to public safety "is not to be determined according to bright lines or categories," the memo said. Instead, agents should consider other factors such as the crime’s gravity, the harm caused and the person's criminal record, DHS instructed.

Aggravated felonies include many offenses, including tax evasion, which may not threaten public safety, said Rick Su, immigration law professor at the University of North Carolina at Chapel Hill.

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That’s partly why the Biden administration may not have specified aggravated felonies in the memo and have told its immigration officers to use their judgment when deciding whether a person’s conviction merits detention and deportation priority, Su said.

Based on the memo, officers weigh "very serious criminal convictions that would make someone be a threat to public safety, as opposed to perhaps the less, though still criminal convictions like a theft crime," said Colleen Putzel-Kavanaugh, associate policy analyst at the Migration Policy Institute, a nonpartisan think tank.

Although some people with aggravated felony convictions may be released because of "limited bed space, humanitarian factors, or a removal order which is impossible to execute, there is no evidence at all that DHS has a policy to decline to detain individuals with serious criminal convictions," said Aaron Reichlin-Melnick, policy director at the American Immigration Council, an immigrants rights advocacy group.

People with criminal convictions, including aggravated felonies, have been detained and deported under Biden. More than 23,000 people convicted of aggravated felonies have been deported from the U.S. from October 2021 to February 2024, available DHS data shows.

McCaul said, "Mayorkas said, ‘Hey you don’t have to detain aggravated felons,’ those are rapists, child predators, you know, murderers."

A DHS memo didn’t explicitly say "aggravated felons" were prioritized for detention. Instead it said people who threaten public safety because of "serious criminal conduct" should be prioritized for detention and removal. The memo gave officials discretion to consider factors beyond a persons’ criminal conduct when determining whether they should be prioritized for detention and deportation. 

But immigration experts said people convicted of murder and rape — aggravated felonies — would be a priority for detention because that serious criminal conduct would threaten public safety. Federal data also shows that people convicted of aggravated felonies have been detained and deported under Biden. The list of aggravated felonies under immigration law includes many other crimes beyond the ones McCaul listed, such as theft and tax evasion.

McCaul’s statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
 

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