Seeking Answers About DHS's Priority Enforcement Program with FOIA

By Dan Cadman, June 4, 2015

An open-borders group, the National Day Laborers Organizing Network (NDLON) has joined forces with the Benjamin Cardozo School of Law at Yeshiva University and the Asian Law Caucus to file a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS).

The FOIA request seeks information on the new Priority Enforcement Program (PEP) announced by DHS Secretary Jeh Johnson in one of his series of November 2014 memos implementing the president's constitutionally dubious "executive actions" on immigration — the one that ended the successful Secure Communities (SC) program designed to detect criminal aliens at the front end of the criminal justice system, instead of afterward when they are free to roam the streets finding more victims.

PEP was the secretary's substitution of choice, which automatically makes it suspect, given the administration's the-best-immigration-enforcement-is-no-enforcement approach. Despite Johnson's "personal commitment" to PEP, there have been no cogent explanations or program parameters put forward to clarify what it is, and why it is so superior to SC.

The NDLON et al. FOIA request seeks to fix the lack of information about PEP. It is an astonishing 29 pages long, with an additional eight pages of attachments. It is extraordinarily detailed and exacting in its demands, which unfortunately are also accompanied by any number of questionable-to-downright-absurd assertions, many of which were inaccurately leveled against SC in a report entitled "Secure Communities by the Numbers: An Analysis of Demographics and Due Process", which was examined and exhaustively refuted in a three-part series by Jessica Vaughan and W.D. Reasoner.

Despite the propagandizing, self-serving rhetoric to be found in the FOIA request, which I admit stirs my sense of irritation nearly to breaking point, the government has set itself up for this by not being more forthcoming about PEP.

This obfuscation and unwillingness to speak forthrightly was exactly what DHS and its subordinate agency, Immigration and Customs Enforcement (ICE), did previously with SC — which ultimately led NDLON and Cardozo Law School to file a civil lawsuit against the government in order to obtain information and data. The lawsuit was successful, and DHS and ICE (along with their legal representative in court, the Department of Justice) were excoriated more than once by the presiding judge for misrepresentations, foot dragging, and generally obstructing the case.

In his memo justifying the end of SC, Johnson said "the program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation." Does the man understand the concept of irony? Looks to me like they're headed down the same path again, and it is one of their own making.

If the court misrepresentations and obstruction sound familiar, they should: This is exactly what the administration did in its representations to the district court judge who presided over the suit filed by 26 states against the administration by failing to tell the judge that over 100,000 aliens were beneficiaries of extensions to their executive action status despite having assured him previously that everything was being held in abeyance pending outcome of the case. Anyone sense a pattern of deception here?

Much as I hate to say it, because I have little truck with NDLON or its aims, I hope they go however far they have to in order to get answers about PEP, because the public needs and deserves them, even if that means another long and nasty lawsuit.

After those answers are received, then we can all get down to the serious business of arguing about what they mean. Ms. Vaughan and I and our other colleagues at the Center and elsewhere are waiting with our analytical hats on and pens in hand, ready to debunk whatever spin may be put on either the program or the data by the open-borders crowd.

But don't think we will go easy on DHS or ICE either. They have much to explain, as the tens of thousands of criminal alien releases of the past several years show.