Homeland Security Secretary Alejandro Mayorkas says he’s preparing to take on sanctuary cities that refuse to work with Immigration and Customs Enforcement, and he wants to see more illegal immigrants face criminal prosecution for jumping the border.
He also rejected abolishing or splitting up ICE, rejecting calls from some in President Biden’s political base to eliminate the government’s deportation agents altogether.
Mr. Mayorkas revealed the hard-line stances last week during a virtual town hall forum with ICE employees. The Washington Times has reviewed notes of the conversation, in which Mr. Mayorkas said he’s working on a new set of deportation guidelines to govern how and when officers can arrest and attempt to deport illegal immigrants.
Pressed by ICE employees worried about public resistance to the agency’s work, Mr. Mayorkas said ICE has a “noble mission.”
“I’m 100% opposed to the abolition of ICE,” he told the employees. “It is the opposite of what I think needs to occur. I think we need to strengthen our policies and practices and communicate more effectively what we do and why we do it.”
In perhaps his most striking comments, Mr. Mayorkas said he thought more illegal immigrants should be prosecuted criminally. Generally, illegal immigrants are handled under administrative law, with the punishment removal. But entering the U.S. without permission is a misdemeanor under Title 8 Section 1325, and reentering the country after being ousted is a felony under Title 8 Section 1326.
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“I see cases now where we apprehend and remove individuals that I think need to be prosecuted criminally,” he said.
At another point he said: “Quite frankly, I’m going to have to understand why some of these individuals are not subject to a Title 8 USC 1326 case, and I intend to work with the DOJ in that regard.”
That is likely to irk immigrant-rights advocates who complain that the immigration system is already too tilted toward criminalizing illegal immigration.
A group of professors at the UCLA School of Law filed a brief with the Supreme Court last month arguing that Section 1326 is racist in its origin.
“My view is that no one should be advocating for more 1326 prosecutions without first reckoning with its history,” Ahilan Arulananthem, one of the professors, told The Times. “I don’t know whether Secretary Mayorkas is aware of Section 1326’s origins — I’m sure many people who have prosecuted cases under it (and defended them, as I did for several years) are not.”
The Times asked the Department of Homeland Security for comment on that and other aspects of Mr. Mayorkas’s comments at the forum, but the department declined, citing “internal discussions with our personnel, including those that are deliberative and law enforcement sensitive.”
The Times shared Mr. Mayorkas’ comments with several current and former Homeland Security officials who said some of the secretary’s words might sound good to the workforce, but they doubted his willingness or ability to see them through.
One of those officials, Jon Feere, a former top ICE employee who now is at the Center for Immigration Studies, said Mr. Mayorkas’ promise to tackle sanctuary cities rings hollow because his deportation policy is going to be so narrow that it will free many of the same illegal immigrants the sanctuaries want to protect.
“Mayorkas likely understands that some sanctuary policies are so ridiculous that even murderers might be released. But anything he does will still be contained within the Biden administration’s own narrow enforcement scheme,” Mr. Feere said. “Biden’s DHS is allowing thousands of criminal aliens to run free via its own policies.”
Another former Homeland Security official said Mr. Mayorkas was using the right words to talk to ICE but doubted his follow-through.
“I’ve seen this administration say a lot of things that I feel like they’re disingenuous about, and they know they can’t deliver on, but they pretend and leave their audience to believe they can deliver on. That’s what I see here,” that official said.
ICE has several major components: the nearly 5,000-strong deportation force, known as Enforcement and Removal Operations; Homeland Security Investigations, with 7,000 agents who probe everything from human smuggling and gang activity to child pornography; and the Office of the Principal Legal Advisor, which litigates cases in the immigration courts.
During last week’s forum, employees from each of those components pleaded for a firmer hand amid the current migrant surge.
One employee said the department was treating illegal immigrants at the border more leniently for COVID-19 purposes than American citizens. Several employees questioned the Biden administration’s border policy changes, saying what the Trump team had been doing seemed to have worked.
One employee complained of “notoriously low morale” and blamed lack of support from Washington. Another employee demanded action on “racism, xenophobia, intolerance and the inflammatory rhetoric” in ICE field offices.
A number of questions asked whether ICE, stitched together in the wake of the 2001 terrorist attacks, should be split up, with Homeland Security Investigations separate from Enforcement and Removal Operations.
One HSI employee said sanctuary cities refuse to work with ICE because of its deportation mission, but as collateral damage they won’t cooperate on other criminal investigations.
Mr. Mayorkas, though, said the answer isn’t a divorce — “I also do not agree with splitting HSI off from ERO,” he said. Instead, he vowed to battle the most extreme of the sanctuary cities with “blanket policies” of an unwillingness to work with ICE.
“I know the jurisdictions, and that is going to be one of my significant priorities,” he said. “I think we have a lot of education to do and I think we have a lot of educating to do not only with city officials in terms of what we do and how we do it. But I think we have a lot of educating to do of the American public.”
Mr. Mayorkas served during the Obama years as head of U.S. Citizenship and Immigration Services and then as deputy secretary at Homeland Security, serving under Secretary Jeh Johnson.
He told ICE employees that he tried to negotiate with some of the sanctuary jurisdictions back then, too. He said he had some successes and some failures.
“In one jurisdiction in particular, I was dealing with the sheriff and the chief of police.
Together they said, look, you know what, we can’t work with you. You’re going to pick up an individual who has a 12-year-old DUI. We can’t work with you. The politics of the community won’t allow it,” Mr. Mayorkas recalled.
“I said, well, you’re not going to work with us on that, what will you work with us on? If we’re confronting an individual who is now — this is his third DUI and yes, he had one 12 years ago, but he had one 8 years ago and he had one 24 months ago. Are you going to work with us in response to that individual?
“Are you going to work with us with respect to the individual who was convicted and sentenced on a felony sexual misconduct case, are you going to work with us on that because that individual by the way is returning to the immigrant community, is not going to Bel Air, and so, are you going to work with us? And the answer was sometimes yes and we proceeded and sometimes it was no and I’ve got to figure out how to tackle the nos.”
The Trump administration, while chiefly targeting illegal immigrants with criminal records, allowed agents and officers to pursue deportation against anyone in the country illegally.
Under the Biden team, ICE has been given much stricter rules, including a set of priorities that have cut ICE book-ins by 62%, according to the Transactional Records Access Clearinghouse.
Mr. Mayorkas defended the stricter priorities.
“Every law enforcement agency to which I have been a part, or which I have worked, has priorities in light of the fact that it doesn’t have unlimited resources,” he said. “I know there may be disagreements about where those lines are drawn, and we’re going to be talking about that in the coming weeks.”
He promised some “discretion” and insisted the final guidelines will not be “set in stone.”
Earlier this year, in another conversation with a smaller group of ICE employees, Mr. Mayorkas had floated the idea of changing the job classification of deportation officers, known in government speak as 1801 series employees, and making them criminal investigators, or 1811 series employees.
Some current and former ICE employees said that seemed like an attempt to erase the deportation force through bureaucratic reorganization.
Mr. Mayorkas, in last week’s forum, said during his previous stint as deputy secretary of the department during the Obama years he participated in some deportation operations, including one in New York, and the ERO officers, classified as 1801-series employees, who tracked down and staked out fugitives seemed to be performing like 1811-series agents.
“I’m not an expert in the 1801-1811 disparities … but if you ask me sitting right here now what type of work that is, that to me strikes me as 1811 work, and I’m not sure why it isn’t,” he said.
Mr. Mayorkas also defended his decision to oust the entire Homeland Security Advisory Committee, saying he wants a broader set of views.
He said some of the people he ousted were “dear friends of mine,” which he said was proof that his decision wasn’t political.
“None of what I do is personal, it’s about mission and what I think best accomplishes it,” he said.
• This story has been updated to correct Mr. Mayorkas’s previous experience. He was head of U.S. Citizenship and Immigration Services, not ICE, before becoming deputy secretary at Homeland Security.