Immigration and Customs Enforcement is arresting 65% more convicted aggravated felons under President Biden than it did last year under President Trump, the agency told a federal judge as it makes the case for its new deportation limits.
Overall arrests are down by more than 13,000, but ICE says by not going after those with lower-level records, it has been able to more effectively target the most serious criminals among the immigrant population.
“The court’s order and the preliminary injunction would make it impossible for ICE to prioritize the use of its finite detention resources to carry out its public safety and national security mission in a fair, consistent and effective manner,” Peter B. Berg, acting deputy executive associate director of ICE, told a federal court.
ICE is battling against a judge’s order last week ruling that the agency broke the law when it issued current guidelines limiting arrests and deportations. Judge Drew Tipton on Monday granted the Biden administration’s request for a stay, issuing a one-week reprieve to the government while it tries to rush an appeal, hoping to convince judges that limiting who can be arrested is the best way to protect the country.
Mr. Berg said ICE has limited detention bed capacity and most of those beds are needed to handle the border surge that analysts said Mr. Biden sparked by loosening immigration controls.
But Tom Homan, who used to serve in Mr. Berg’s post and then served as acting director of all of ICE in the Trump era, said the Biden administration isn’t telling the entire story.
He said ICE has canceled contracts that would offer it more beds at competitive rates, and said the agency also has — and regularly has used — the power to transfer money to increase bed capacity.
“During both the Obama and Trump administrations, officials concluded that ICE needed additional funding, beyond that specifically appropriated for detention, to detain aliens in the United States. In those circumstances, officials would transfer the necessary amount of money from other portions of the ICE or [Department of Homeland Security] budget where it was less urgently needed,” Mr. Homan said in a filing on behalf of Texas and Louisiana, the states suing to block the ICE rules.
ICE always prioritizes migrants with criminal records, but during the Trump era agents and officers were given free rein to arrest just about anyone in the country illegally who they came across during their duties.
The Biden team has issued a series of memos narrowing that scope, including a Feb. 18 directive from acting ICE Director Tae Johnson that orders officers and agents to chiefly focus on migrants who pose security risks, who recently jumped the border, or who have aggravated felony convictions on their records.
Other illegal immigrants can be arrested, but only after prior approval from a superior. And officers have revealed a series of cases in which supervisors have refused to approve the arrests, resulting in sex crimes offenders being released into communities.
From Feb. 18 through July 31, ICE’s enforcement and removal division “processed” 25,916 administrative arrests, and 20% were “noncitizens convicted of aggravated felony offenses,” according to Mr. Berg. During the same period in 2020, the enforcement division notched 39,107 arrests, but only 8% were aggravated felon convicts.
One major caveat to the data is the Biden administration’s focus on migrants with convictions, which is significantly narrower than the Trump team, which considered arrests a good identifier for people who were risks to public safety.
For example, in 2019 ICE made 143,099 administrative arrests. While 64% of those had criminal convictions, another 22% had pending charges. The data from ICE’s 2019 report doesn’t give a breakdown for aggravated felony convictions.
Mr. Berg said if ICE is forced to ditch the new priorities, it could mean the agency ends up having to devote bed space to people who aren’t priorities, which he said means they would release some people who they want to deport.
But Jon Feere, former chief of staff at ICE, said the theory behind the Biden rules is flawed. He said to protect public safety it makes sense to go after illegal immigrants even if they don’t already have serious felony convictions.
He wondered how many more victims will result from ICE making 13,000 fewer arrests.
“A week before an illegal alien kills someone, he’s deportable. By not making the arrest at the first available opportunity — which ICE is perfectly able to do under law — and instead waiting for violence to occur, the Biden administration is likely doing considerable damage to many U.S. residents,” said Mr. Feere, who is now director of investigations at the Center for Immigration Studies.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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