- The Washington Times - Monday, December 6, 2021

The Homeland Security Department, battling to defend its rules limiting arrests and deportations of illegal immigrants, submitted documents to a federal court that misrepresented the involvement of sheriffs’ offices and victim advocates.

Secretary Alejandro Mayorkas and other senior department leaders consulted heavily with immigrant rights groups in crafting the rules. They said in filings with a federal judge that they also consulted with sheriffs and with one group that represents victims of crimes committed by illegal immigrants.

Those involved vehemently dispute that account.



“How about none?” said Don Rosenberg, president of Advocates for Victims of Illegal Alien Crime. “Did they ever contact us and say, ‘We want to talk to you about our policy and how we’re going to do this?’ Absolutely, 100% no.”

The type of outreach Mr. Mayorkas and his aides conducted is more than a matter of record-keeping. The government told a federal court that information the secretary gathered from meetings helped him form the decisions he detailed in a Sept. 30 memo about which immigrants can be targets for arrest and deportation.

Those rules are already the subjects of legal battles. Opponents say they were written in violation of regulatory procedures.

If he embellished input from pro-enforcement groups, as they charge, that could be used as evidence that Mr. Mayorkas’ decisions were arbitrary.

Under the guidelines, which took effect last week, immigration enforcement agencies must ignore the status of most illegal immigrants who reached the U.S. before late 2020.

Mr. Mayorkas said merely finding someone who is in the country illegally is not a good enough reason to enforce immigration laws. Instead, officers and agents must justify an arrest or deportation under one of three categories: national security risk, serious crime or recent border jumping.

Homeland Security said Mr. Mayorkas wrote the rules after personally meeting with employees at U.S. Immigration and Customs Enforcement in seven major cities. The secretary talked with leaders of three prominent immigration advocacy groups and spoke with domestic violence advocates and “members of the academic community,” the department said.

Mr. Mayorkas and his team also “conducted outreach” with government groups, including its own agency executives and employees, senior leaders at other immigration agencies, police and sheriffs groups, and national associations for states, counties, mayors, state legislators, governors and attorneys general.

ICE said it reached out to a long list of interest groups, including the Law Enforcement Immigration Task Force, the Alliance for Immigrant Survivors, the American Constitution Society, the National Immigrant Justice Center, the American Civil Liberties Union, the American Immigration Council, the International Refugee Assistance Project, the National Association for Public Defense, Mothers Against Drunk Driving, the Public Defenders Coalition for Immigrant Justice, Asian Americans Advancing Justice, Black immigrant leaders and Mr. Rosenberg’s group, AVIAC.

Almost all of those groups have positions backing more lenient enforcement of immigration law. Only Mr. Rosenberg’s group proactively pushes for stiffer enforcement, and he said the department did not reach out.

“Not unless you consider I’m on their mailing list for their press releases,” he said.

ICE referred questions to Homeland Security, which said Mr. Rosenberg’s organization was part of a July 8 meeting “to discuss enforcement practices.”

Lack of input

The Washington Times has reviewed documentation of that July 8 meeting. The meeting’s focus was ICE’s erasure of an office set up during the Trump administration to serve victims of crimes committed by illegal immigrants, not enforcement practices. At a couple of points late in the meeting, ICE Chief of Staff Timothy Perry did mention the enforcement priorities. He said he had been conducting meetings and the agency would like to “engage” at some point on the priorities with AVIAC.

That engagement never took place, Mr. Rosenberg said.

He provided extensive email communications with ICE, including a request for a follow-up conversation with Mr. Perry, which the agency politely sidestepped.

Homeland Security also said Mr. Mayorkas met with sheriffs organizations on April 8.

Jonathan Thompson, executive director of the National Sheriffs’ Association, confirmed an April meeting but said Homeland Security’s description of it is off base.

“Clearly, some appointee went too far with their justification of outreach,” Mr. Thompson said. “We had no outreach, we had no discussions, no give and take, no input into the enforcement priorities.”

Clint McDonald, executive director of the Southwestern Border Sheriff’s Coalition, said his group was part of an April 8 meeting, not the April 5 date Homeland Security said. Mr. Mayorkas and Rodney Scott, Border Patrol chief at the time, were present.

Mr. McDonald, a retired sheriff, said the meeting was a chance for sheriffs to give input about the border. The sheriffs also gave Mr. Mayorkas a document with thoughts about action items.

According to a follow-up Zoom meeting, Mr. Mayorkas had not looked at the document as of October, Mr. McDonald said. Mr. Mayorkas released his updated priorities in September.

Mr. Scott, the former Border Patrol chief, backed the sheriffs’ recollection of the meeting. He said he remembered the details because it was the only time during his tenure that he had a face-to-face, in-person engagement with Mr. Mayorkas. The topics covered were border enforcement and federal grant funding.

Mr. Scott said he didn’t recall Mr. Mayorkas mentioning the enforcement priorities “in any way, shape or form.”

The Times asked Homeland Security about the disparities, but the department didn’t respond to the follow-up inquiry.

The department also didn’t respond to a request for comment on the far higher number of immigrant rights groups consulted during the outreach.

The Washington Times has filed Freedom of Information Act requests for Mr. Mayorkas’ schedules and for records of his meetings with ICE employees. The Times requested expedited processing on both requests, but was denied. The Department of Homeland Security has not produced records for either request.

‘Just checking the box’

The dissonance in the accounts of Mr. Mayorkas’ outreach is more than a matter of veracity.

Federal courts have been asked to scrutinize the Biden administration’s arrest and deportation practices, and the way the department went about writing the rules is a key element in whether the policymaking passes muster under the Administrative Procedure Act.

The documents detailing the outreach claims were filed as part of the “administrative record” of Mr. Mayorkas’ decision-making in a lawsuit filed in federal court in Texas.

ICE employees who were part of some of the outreach conversations said Mr. Mayorkas’ final priorities didn’t reflect the input he was getting during town hall meetings. They said approvals took too long and detention space was too constrained for the policies to be workable.

One group not listed as part of the outreach is the National ICE Council, the labor union for deportation officers.

Homeland Security said union representatives were “given the first opportunity to speak” in the town halls with agency employees.

Chris Crane, the council’s president, got feedback from union members about the sessions. If ICE leadership was using the meetings as a chance to go over the priorities, he said, that was news to the participants.

“We’re not aware of any officer in the field that supports these policies that they’ve put forth,” Mr. Crane said. “We don’t think anyone really had the opportunity to provide input to these specific changes. That would typically be something the National ICE Council would do, and that certainly didn’t happen here.

“It’s just absurd,” he added. “It’s just checking the box, that’s all this is.”

Jon Feere, a chief of staff at ICE in the Trump administration, said Mr. Mayorkas seems to have discounted any feedback from rank-and-file employees.

“The subject matter experts at ICE and [U.S. Citizenship and Immigration Services] told Mayorkas that these restrictions are undermining their ability to carry out the DHS mission. The USCIS fraud division naturally wants immigration fraud to be a priority, and ICE field office directors understand that giving most illegal aliens a pass is going to encourage more illegal immigration. These are legitimate concerns, and they were completely dismissed by Biden’s political appointees,” Mr. Feere said.

“Mayorkas met with a lot of anti-borders, anti-enforcement organizations, and his ICE enforcement guidelines reflect that. It’s difficult to see any influence from law enforcement or advocates of public safety.”

The Times also reached out to several of the immigration activist groups listed as having been consulted. None of them responded to messages.

Mr. Mayorkas’ Sept. 30 policy replaced a Feb. 18 policy from acting ICE Director Tae Johnson that was the subject of litigation. The February guidance replaced an Inauguration Day policy.

Under Mr. Johnson’s policy, ICE officers averaged an arrest every other month — orders of magnitude lower than in the Trump years. But ICE said the increased number of aggravated felons arrested proved that the narrower focus was helping target the worst actors.

ICE said a typical arrest request from officers was approved in less than 70 minutes, “suggesting that the approval regime does not unduly delay enforcement actions.”

Mr. Feere, now director of investigations at the Center for Immigration Studies, said making an arrest requires effort and paperwork even under optimal circumstances. The new Biden rules make that much tougher.

“DHS is being run by people who fundamentally don’t support its congressionally mandated mission, and that’s a serious problem for our democracy,” he said.

He said it may be time for Congress to impose an arrest quota on ICE. Homeland Security acknowledged that the sheriffs suggested it.

“Congress has given the executive branch a lot of leeway in how it carries out immigration enforcement, but the Biden administration’s extremely limiting policies suggest that Congress may have to mandate an annual minimum number of arrests and removals if our laws are to mean anything. Not surprisingly, sheriffs recommended this type of standard,” Mr. Feere said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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