Some ICE officers have been told to cut down on arrests of even serious criminals to free up detention bed space so the government has somewhere to put illegal immigrants caught at the border, The Washington Times has learned.
The guidance does not appear to be nationwide but was delivered to agents in at least some field offices of U.S. Immigration and Customs Enforcement.
One officer on the East Coast said ICE officers had been told to focus their arrests on class A felons — the worst of the worst. That leaves plenty of other bad actors outside the arrest aperture.
“We are being told to abandon detention of anyone without a class A felony like murder in preparation for border flights,” the officer said.
It is the latest signal that the government is scrambling to try to accommodate what it expects to be a surge once the administration ends the pandemic Title 42 policy that allows some illegal immigrants at the border to be quickly ousted.
ICE said in a statement that no such orders have come from on high.
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“There has not been any guidance sent to the field that would change [ICE Enforcement and Removal Operations] efforts,” an agency spokesperson said.
The ICE officer on the East Coast said it’s likely offices were told to make space for border cases and the field offices made the decisions themselves.
“To ensure they had room for planeloads, they told the field not to make any arrests unless it is an extreme severity charge,” the officer said.
Tom Homan, who led ICE during the Trump administration, said such a practice would be a mistake.
“With the crime rate rising to historic highs across the country, especially in the Northeast, what ICE is doing makes no sense from a public safety perspective,” he said.
He laid the blame at the feet of Homeland Security Secretary Alejandro Mayorkas.
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“I guess when the DHS secretary says they will prioritize public safety threats, he was again lying just like his statements on a secure border,” Mr. Homan said.
That was a reference to Mr. Mayorkas’ repeated assurances that his department, while slashing ICE arrests and deportations, would still remove serious criminals from communities when they were encountered.
It was Mr. Mayorkas who ordered ICE to be more cautious about arrests, helping send down the numbers.
In a memo last year, he ordered immigration agents and officers to look for reasons not to deport and to evaluate each case in total. Criminal records that would have made noncitizens easy targets in the past were often no longer good enough.
Courts have halted Mr. Mayorkas’ order, but ICE employees said the lack of detention beds means the secretary’s priorities remain in practice.
One West Coast officer said ICE officers were even limited in how many sex offenders they could arrest because there wasn’t enough space to hold them.
Felonies that don’t reach class A status are generally those for which a crime doesn’t carry a potential sentence of execution or life in prison.
Depending on circumstances, that includes domestic violence, assault, fraud and financial crimes, and many sex offenses.
Detention is at the heart of immigration enforcement. If illegal immigrants can be held, they can be deported. That’s true for new arrivals at the border and for those in the interior of the U.S.
The Biden administration has been reluctant to use beds for ICE’s interior arrests, which went from a high of 55,000 during the Trump years to as low as 13,000 near the start of the Biden administration, according to data from the Transactional Records Access Clearinghouse.
The current capacity is funded for 34,000 beds, but only about 31,500 beds were in use in late November.
The Biden administration wants to go lower still. The president’s 2023 budget request would slash ICE’s average daily capacity by 27%, to 25,000 beds.
That’s confounding to officers, who say the administration seems to be tying their hands on purpose.
“My opinion is that they want the border opened,” one officer said, “by obfuscating the process so much they can claim they have things under control while they let everyone in.”
Another officer said: “There’s nothing orderly about this immigration system that’s being made. Orderly would be if the individuals were issued a notice to appear at the border or, better yet, their asylum claim was heard at the border. Once they push those individuals towards the interior of the country, it’s near impossible to remove them.”
Jon Feere, who served as ICE”s chief of staff in the Trump administration, said the Biden team could find ways to hold both border arrivals and the criminals arrested in the interior — if it wanted to.
“They’re willing to harm public safety more than they are willing to pay for more detention space,” he said.
He said Congress should force the administration to expand bed space.
“ICE has a very large budget. This administration is choosing not to spend it in a manner that protects the public. Congress must step in and require ICE to actually fill detention beds, and if they need more, they should actually ask for beds,” Mr. Feere said.
The administration has repeatedly cited a shortage of detention beds.
In an oral argument to the Supreme Court this year, the Justice Department said the lack of space was why Homeland Security found it necessary to catch and release so many illegal immigrants at the border.
It’s not clear why Homeland Security is planning to fly more of those migrants deep into the interior.
The looming border surge could shatter records.
Border Patrol agents arrested about 6,600 illegal border crossers a day in October. Homeland Security has projected that the number could reach 18,000 once the Title 42 pandemic expulsion policy expires.
Under one judge’s order, Title 42 is set to expire on Dec. 21, though legal wrangling could delay that expiration date.