Mayorkas Begs Sanctuary City Mayors for Cooperation

He needn’t have bothered — his ‘new and gentler’ ICE isn’t going to change progressives’ minds

By Andrew R. Arthur on January 23, 2022

DHS Secretary Alejandro Mayorkas delivered remarks before the 90th Winter Meeting of the U.S. Conference of Mayors last week. He began with the usual pleasantries, but his talk got interesting when he got to immigration and Mayorkas started begging the majordomos of sanctuary cities for cooperation with his new and gentler ICE. He needn’t have bothered because he wasn’t going to change any minds.

Attendees Wanted to Know About the Border, but Mayorkas Didn’t Deliver. Mayorkas’ remarks focused on four subjects within his portfolio: Cybersecurity, domestic violent extremism, immigration, and natural disasters. Mayorkas conceded that immigration was “likely uppermost in” the minds of the attendees, but then buried it toward the end of his speech.

In his introductory remarks, Miami Mayor Francis X. Suarez (R), president of the conference, noted that Mayorkas was “known for responding to the influx of migration across the southern border”. While the secretary acknowledged Suarez’s reference to the border and conceded that it was “of primary focus”, he then refused to discuss it.

Mayorkas Touts “Justice, Fairness, and Equity”. Instead, Mayorkas talked about “something more ... something different”: His September 30 memo captioned “Guidelines for the Enforcement of Civil Immigration Law, which has largely negated ICE enforcement in the interior and allowed, as my colleague Jessica Vaughan has explained, untold numbers of serious criminal aliens to remain on the streets.

Of course, Mayorkas did not describe the enforcement restrictions in that memo in those terms. Rather, Mayorkas assured the mayors that “in those guidelines, I articulated what I felt was a very important principle: that we will not dedicate our limited enforcement resources to apprehend individuals who have been here in this country for many years, who have been contributing members of our communities.”

The Secretary’s Dour View of Our Immigration System. Carrying that theme one step further, Mayorkas contended that his memo was “not just a matter of the appropriate allocation of limited resources but it is a matter of justice and fairness and equity as well.”

Mayorkas apparently does not believe that there is much “justice, fairness, and equity” in our current immigration enforcement system, and those beliefs underpin his enforcement guidelines memo. Let me explain.

During a Senate hearing in November, Sen. Chuck Grassley (R-Iowa) focused on a sentence in that memo, where the secretary stated: “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” (Mayorkas reiterated that point in his prepared remarks to the mayors' conference.)

Grassley then asked Mayorkas whether that applied to aliens “who have received due process” and received a final order of removal from an immigration judge.

Mayorkas first attempted to dodge the question by asserting that DHS does not have the ability to remove the 1.2 million aliens who are under removal orders. When pressed by Grassley, however, Mayorkas averred: “I would not necessarily accept the fact that all of them received due process.”

Keep in mind that with respect to those aliens, Mayorkas is the prosecutor, not the adjudicator — that role is performed by the attorney general and immigration judges within DOJ, and they are responsible for assuring that respondents in removal proceedings receive due process. Thus, there is something not only unseemly but offensive in the secretary’s response.

Taken in the best light, however, Mayorkas was simply stating that he thinks that the immigration system as a whole is unjust, unfair, and inequitable. If that is true, he should never have taken the job as the nation’s top immigration prosecutor, though he is free to run for Congress and make the changes that he deems necessary.

Mayorkas Begs Sanctuary Mayors for Help. Despite whatever iniquities and inequities the secretary believes lurk in the Immigration and Nationality Act, however, the secretary then begged the assembled mayors to help him enforce it.

After assuring those assembled that his ICE “is not the agency of the past” and instead is “focused on making our communities safe and allowing those who have been contributors to it and productive members of it, to allow them to continue in their contributions and their productivity”, Mayorkas then pleaded with the mayors to “to reconsider [their] position of non-cooperation and see how we can work together”.

He should have saved his breath, his time, and his dignity.

Although Mayorkas did not say the words “sanctuary city”, it is obvious that his words were addressed to the mayors of such localities. As Vaughan defines the term:

These cities ... have laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.

ICE Enforcement Under Trump — and Obama. Although he never mentioned Donald Trump, Mayorkas apparently believes his own rhetoric and that of his boss as it relates to immigration enforcement under Trump’s administration — that it was cruel, out of control, and unjust.

Want proof? Just before making those statements, Mayorkas averred: “Some of your cities, by reason of past history, have declined to cooperate with immigration authorities in the removal, the apprehension and removal of individuals, even if those individuals pose a public safety threat.”

As I have explained in the past, however, assertions of “hyper” ICE enforcement under Trump is a canard. Fewer aliens were removed on an annual basis in any year under Trump than in all but the last two years under Obama, and the difference is not even close.

At its most vigilant in FY 2018, ICE under the Trump administration removed just less than 41.6 percent as many aliens from the interior (as opposed to at the border) as were removed by the agency in FY 2010 under President Obama.

Nor were most of the aliens removed from the interior by ICE under Trump harmless, law-abiding folk.

In FY 2018 — again, the height of ICE enforcement under Trump — 76.1 percent of the aliens removed from the interior had criminal convictions and 14.8 percent had pending criminal charges — meaning 90.9 percent had criminal records.

That fiscal year was not an outlier, either: In FY 2019, 75.6 percent of the aliens ICE removed from the interior had criminal convictions, and 15.7 percent had pending criminal charges — a total of 91.3 percent. In FY 2020, 92 percent of the aliens ICE removed from the interior had pending criminal charges or convictions, with convicted aliens making up the bulk (77 percent).

A Pointless Exercise. Of course, if you look at Vaughan’s map of sanctuary jurisdictions, you will see that most passed their no-ICE-assistance rules in 2014 — the sixth year of the Obama administration, and a year in which the 44th president’s DHS Secretary, Jeh Johnson, issued his own guidance limiting ICE enforcement.

Nobody accused Obama or Johnson of randomly scooping up productive alien members of society. Those sanctuary laws were passed as a sop to progressive constituencies that abhorred any form of immigration enforcement. The “new and improved” (and largely eviscerated) ICE that Mayorkas has created isn’t going to get the mayors of those towns to change their minds, lest they lose woke votes.

The only other alternative is that Mayorkas was attacking ICE enforcement under both Trump and Obama. That doesn’t make much sense, however: Mayorkas was the deputy secretary of DHS from 2013 to 2016, again the period in which many of those sanctuary laws were enacted.

That said, if Mayorkas was partially bad-mouthing Barack Obama before the U.S. Conference of Mayors, he should not have been so ambiguous, but he may not have received much applause, either. And if he believes that he was at least partially responsible for denying aliens “justice, fairness, and equity” during his prior tenure, it raises the question of why he didn’t resign in protest.

The attendees at the U.S. Conference of Mayors really wanted to hear about the border, but instead got to see the secretary of Homeland Security denigrate ICE enforcement while pleading for assistance in the agency’s efforts. To read that sentence is to understand why he needn’t have bothered.