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Biden’s federal sanctuary plan puts criminals on the streets

The US Marshals Service, under Attorney General Merrick Garland, is drafting a policy change directing its field offices, marshals, deputies and detention centers to cease honoring immigration detainers filed by Immigration and Customs Enforcement agents, The Washington Times reports. The shift has reportedly already taken effect in some jurisdictions.

This protocol would put USMS in the same category as New York City, San Francisco and other notorious sanctuary cities that have adopted ordinances designed to prevent ICE from doing its job, by enabling deportable criminal aliens to remain in our communities and commit more crimes. There will be a tragic human cost.

For those who don’t know, a “detainer” is a request by ICE, a Department of Homeland Security agency, to keep an alien upon release by the holding agency — in this case the Marshals Service — so ICE has enough time to take custody of the alien and initiate removal proceedings.

Attorney General Merrick Garland speaks to the press on August 11.
Attorney General Merrick Garland speaks to the press on Aug. 11, 2022.
Department Of Justice/ZUMA24.com

The proposed policy is a monumental change: For the first time in our nation’s history, one federal enforcement organization is being directed to nullify by obstruction another federal agency’s enforcement of federal law. It’s even more remarkable because the USMS is the oldest federal enforcement agency in the United States and has plenary powers to enforce federal laws of all sorts.

The law — US Code Title 28, Section 566(c) — is clear: “Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.” A detainer is part of the process by which immigration agents take custody of alien criminals from the Marshals Service to subject them to expulsion proceedings before an immigration judge.

Ironically, prior to its breakup by the Homeland Security Act, the Immigration and Naturalization Service (ICE’s predecessor) was a Justice Department agency, as is the Marshals Service. Cooperation between the Marshals Service and both ICE and its predecessor has always been necessarily close: The number of aliens in Marshals Service custody awaiting trial and those in Federal Bureau of Prisons custody serving sentence have historically been high. At the end of federal fiscal year 2019, for instance, of the 63,725 individuals in Marshals Service custody, 23,580 (37%) were known or suspected aliens.

Further, according to Bureau of Justice Statistics, in FY 2020, 40% of all offenders charged in US District Courts were aliens; and 37% of all prisoners released from federal Bureau of Prisons custody were aliens. One wonders whether the BOP, under the Garland Justice Department too, will soon adopt such policies, potentially freeing illegal aliens who’ve served federal time.

It’s worth noting that oftentimes, it is ICE or a DHS sister agency, such as Customs and Border Protection, that makes the criminal arrest of an alien placed into Marshals Service custody. Think how often Border Patrol agents arrest aliens for criminal drug, gun or contraband smuggling offenses on the southern border — and think about the consequences of allowing them to be released on US soil instead of handing them over to ICE for removal.

USMS representatives claim they’re not actually hindering immigration enforcement because they’ll notify ICE of impending releases, enabling ICE agents to show up to take custody, should they choose. This is a canard put out for public consumption, since it presupposes that ICE field offices are co-located with Marshals Service offices, just minutes away to secure assumption of custody. But that’s far from true. It’s just as likely ICE agents are hours away from the place of release, particularly since the Marshals Service leases space all over the country from state, county and local jails to hold its prisoners.

US Immigration and Customs Enforcement agents transfer an immigrant
US Immigration and Customs Enforcement agents transfer an immigrant after an early morning raid in Duarte, California on June 6.
Damian Dovarganes/AP

Under the perverse rules the Garland Justice Department is drafting, undoubtedly with the knowledge and silent consent of Alejandro Mayorkas’ Homeland Security Department, aliens upon release from the Marshals Service, for example when posting a bond, will be allowed to walk freely down the streets of America.

The Constitution’s Article II, Section 3 mandates that the president “shall take Care that the Laws be faithfully executed.” This requirement applies not only to the president but to his Cabinet officers. It is not a hard leap to infer that Attorney General Garland and Homeland Security Secretary Mayorkas are in breach of their constitutional duty and needlessly putting the American public at risk.

Dan Cadman is a fellow at the Center for Immigration Studies and a retired INS/ICE official with 30 years of government experience.

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