Republicans on the House Oversight and Reform Committee are probing the “historically low” rate of arrests of illegal immigrants by ICE, saying it appears the Biden administration, unwilling to abolish the agency outright, is instead paring it down through policy memos.
Rep. James Comer of Kentucky, the top Republican on the committee, and Rep. Michael Cloud of Texas, the top Republican on the economic and consumer policy subcommittee, fired off a letter to U.S. Immigration and Customs Enforcement demanding data on why the agency, which has not lost any funding, is arresting and deporting people at a much slower pace than in the past.
In the letter, obtained first by The Washington Times, they tied the decrease to policies that the Biden team implemented in February and renewed in September that limit the ability of ICE officers to go after illegal immigrants except in the most serious criminal cases, national security threats or recent border crossings.
“As radical, left-wing activists recklessly call to abolish ICE, it appears the Biden Administration is abolishing its mission by memorandum,” the lawmakers wrote in their letter, joined by the other Republicans on the House oversight committee.
Mr. Comer and Mr. Cloud asked acting ICE Director Tae D. Johnson to turn over records on enforcement during President Biden’s tenure, broken down by types of crimes. They also requested the documentary trail that led to Homeland Security Secretary Alejandro Mayorkas’ key changes this fall.
In a late-September memo, Mr. Mayorkas declared that being in the country illegally is no longer sufficient grounds for arrest or deportation. Agents and officers must justify arrests by studying their targets and balancing criminal records against “mitigating” factors such as ties to the country or hardship they or their family might face if they are deported.
That policy replaced a February memo from Mr. Johnson at ICE that included similar restrictions on enforcement.
Mr. Mayorkas released a second policy in October limiting where enforcement can take place. That memo says agents and officers should not take action around schools, day care centers, bus stops, clinics, parks, churches, social services offices and anywhere children might congregate or illegal immigrants might go to seek assistance.
The Washington Times analyzed those rules for the District of Columbia and found that they put most of the city off-limits for enforcement.
Former ICE officials questioned why, if ICE officers are going after only high-value targets, Mr. Mayorkas would want to limit their ability to get those dangerous people off the streets.
The Department of Homeland Security, in a letter to a number of Republican House lawmakers last month, defended Mr. Mayorkas’ policies by saying ICE doesn’t have the resources to go after every target, so it must be judicious in those it does pursue.
“They are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of U.S. communities for years,” wrote Alice Lugo, Mr. Mayorkas’ congressional liaison. “The fact that a noncitizen is a removable citizen should not alone be the basis of an enforcement action against them.”
It’s not clear what a “removable citizen” is. Deportation, or removal, is the civil penalty for those in the country unlawfully, which by definition means they are not citizens.
In addition to the national security and public safety threats, which are judged based on criminal convictions, immigration agents and officers are supposed to look for illegal immigrants who jumped the border after Oct. 31, 2020, Ms. Lugo said. That roughly coincides with Mr. Biden’s election and the start of the massive surge of border jumpers plaguing the administration.
The Washington Times reported last month that questions have been raised about the process Mr. Mayorkas used to write the new enforcement rules.
The groups he consulted tilted heavily toward immigrant rights advocacy and were light on pro-enforcement voices.
Some of the enforcement groups that officials said were consulted dispute that characterization. They said their communications with Mr. Mayorkas and his team didn’t constitute outreach from their point of view.
The enforcement rules are facing a legal challenge in a federal court in Texas, and a trial is scheduled in the coming weeks.
Texas and Louisiana, which are leading the lawsuit, filed their witness list this week. They are proposing to call former ICE Director Thomas Homan and Jason Clark, chief of staff at the Texas Department of Criminal Justice.
Under the February enforcement rules, ICE averaged about one arrest every two months for each deportation officer on staff, according to data that the federal government submitted in that case. That is just 25% of what the agency averaged in the Trump years and about 12% of the average during peak Obama years.
Although overall arrests are down, ICE says, the number of aggravated felons nabbed is up. During the period of study, the number went from 3,575 in 2020 to 6,046 in 2021.
Homeland Security says the increase is evidence that the new rules are working to prod officers to go after high-value targets.
ICE has yet to release its full fiscal year 2021 operations report, but data obtained by Jessica Vaughan, policy studies director at the Center for Immigration Studies, showed that deportations were down 90% compared with pre-pandemic levels.
