Homeland Security Secretary Alejandro Mayorkas won’t have his new deportation rules written until August or September, the administration told federal judges this week, marking the second self-imposed deadline the department chief has missed as he tries to come up with a policy to govern whom ICE should target.
And even that new deadline may slip, the Justice Department told the judges.
“The policymaking process is dynamic and responsive to both new events and new information. New priorities may issue either before or after the end of August or beginning of September, depending on the needs of the agency and other contingencies,” the Justice Department said.
The specific reason for Mr. Mayorkas’ delay was not given in court documents, but he is under intense pressure from all sides of the immigration debate.
Migrant advocates want him to halt most arrests and deportations, arguing that undocumented immigrants deserve a chance at citizenship, not ouster for violating the law.
But the administration already is facing a record border surge that has left President Biden and Mr. Mayorkas struggling for answers, and a new policy seen as weak on undocumented immigrants could fuel the border situation.
Mr. Mayorkas has said he’s talking with leaders and employees at U.S. Immigration and Customs Enforcement in order to set the new priorities. He’s also meeting with immigrant-rights activists.
Victims advocates have asked for a meeting but have not heard back.
ICE is operating under temporary rules issued in February that severely limit the pool of undocumented immigrants who are considered targets for arrest or deportation. The Washington Post calculated that deportation officers averaged a single deportation per person every two months under the new rules.
When the current rules were announced Feb. 18, the agency said Mr. Mayorkas would write the final policy “in less than 90 days.” That would have meant by May 19.
In a court filing earlier this month federal lawyers said the new timeline was “the beginning of July.”
Several states have sued to block the February rules, and those cases are pending.
The Justice Department, in a court filing this week in the lawsuit brought by Texas, said that when the new Mayorkas rules are released, they will supersede the February guidance. The federal lawyers said that will make Texas’ lawsuit obsolete, because even if the new policy looks like the old one, it will have grown out of a different set of facts and decision-making.
“Defendants recognize that their anticipated timeline for the issuance of the new guidance is longer than their original expectation, but the deliberative process for developing the new guidance is extensive and involved,” the lawyers said in the Texas case.
States have argued in court that the current February rules were too hasty and no analysis was done to back up Homeland Security’s contention that its resources are stretched too thin to continue arresting and deporting people at the pace of past administrations.
Texas, in its own brief this week, said new rules wouldn’t obviate the current legal challenges, and asked U.S. District Judge Drew Tipton to speed a decision.
“The possibility of new guidance should not delay resolution of Plaintiffs’ pending motion for preliminary injunction, particularly in light of Defendants’ inability to describe what forthcoming guidance would say or when it would issue,” Texas argued.