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AG Derek Schmidt seeks confirmation Biden Administration will defend federal immigration statute

Release Date: Aug 26, 2021

TOPEKA – (August 26, 2021) – Kansas Attorney General Derek Schmidt is seeking confirmation from the Biden Administration that it will faithfully defend a long-standing federal immigration statute that prohibits illegal re-entry.

Schmidt today joined a coalition of 19 other attorneys general in sending a letter to U.S. Attorney General Merrick Garland seeking written assurances by September 17 that the U.S. Department of Justice (DOJ) will defend 8 U.S.C. § 1326, the law governing illegal re-entry. The letter follows a recent district court ruling in which the Chief Judge for the District of Nevada struck down the law and prohibited the government from prosecuting immigrants who illegally re-enter the United States after being deported. The statute has been on the books since 1952.

The state attorneys general are concerned that the DOJ will follow recent patterns of shirking its duty by not defending the law, noting multiple examples in which the Biden Administration has demonstrated a habit of “policymaking through the expedient of strategic surrender” in litigation.

This is particularly concerning given the United States’ unprecedented border crisis. In July, the U.S. Border Patrol reported more than 200,000 encounters with migrants along the U.S.-Mexico border, the highest monthly figure in 21 years. In their letter, the attorneys general said that defense of federal immigration law is one of the most vital tools for the U.S. government to mitigate the border crisis.

“Given that border security had reached the breaking point before Chief Judge Du issued her opinion, just imagine what awaits if you announce your intent not to appeal—an announcement that would, in effect, tell already-deported aliens that they are free to try re-entering again,” the attorneys general wrote. “Indeed, acquiescing in the district court’s opinion would be tantamount to announcing legalization of illegal re-entry. Moreover, under the district court’s reasoning, the United States may well be unable to enforce any immigration laws, which by their nature disparately ipact the many billions of people living outside of our borders.”

Although the DOJ has filed a notice of appeal, that notice does not require the DOJ to ultimately appeal this incorrect ruling. The state attorneys general requested that Attorney General Garland ensure them in writing by September 17 that the DOJ will faithfully defend the law.

A copy of letter to Attorney General Garland can be found at https://bit.ly/3BcwBIU.

In addition to the letter, Schmidt has successfully joined efforts with other states against the Biden Administration's weak policies on border security. On Tuesday, the U.S. Supreme Court ruled for the states that the administration must keep in place a Trump-era policy governing immigrants seeking asylum in the United States while litigation remains pending. Known as the “Remain in Mexico Policy,” the policy requires asylum seekers from third countries to remain in Mexico pending the outcome of their asylum hearings.

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News releases issued prior to 2011 are available through an archive hosted by the Kansas State Library.