ICE Director Needs to Be Schooled in the Law

By Dan Cadman on April 15, 2015

Immigration and Customs Enforcement's newest director, Sara Saldana, is a lawyer and former chief prosecutor as a United States attorney in one of Texas' federal judicial districts. Although she has been on the job less than six months, surely she should have been able by now to absorb some of the basics of the immigration laws she's charged with enforcing to come up to speed and lead. Apparently someone thought her credentials were adequate enough — or that she would be a quick enough study. Else why would President Obama nominate, or the Senate confirm, her for the job?

One alternate theory is because she's malleable and amenable to being used, law be damned, to advance the White House agenda of dismantling effective immigration enforcement between now and the end of the administration's second term.

Certainly there are reasons to believe that, including her faster-than-a-speeding-bullet retraction of statements made in defense of immigration detainers at a congressional hearing some weeks ago that clearly peeved her political bosses, not to mention her dodgy affidavit in a lawsuit challenging the White House's past and planned "executive actions" that would give millions of illegal aliens (including prior deportees and criminals) documents allowing them to live and work in the country.

But, as they say, ignorance of the law is no excuse — an aphorism that, if at no other time, surely should apply to those charged with enforcing the law. Yet in her most recent, less-than-dazzling appearance before a congressional committee yesterday, there again was Director Saldana's ignorance of immigration law and procedure on full display for all to see and hear.

Saldana was being pressed vigorously by Rep. Lamar Smith (R-Texas) on the agency's release of more than 36,000 criminals in 2013 and more than 30,000 this past year.

She conveniently tried to pin the blame for all of the releases on rulings by the Supreme Court and various federal appellate courts, although the agency has already admitted that wasn't the case in 2013, after a government audit established as much. I have no doubt follow-up audits of last year's releases will establish a continued pattern of mismanagement and abuse of discretion.

But even more singularly, when Rep. Smith asked Saldana why the agency wasn't simply more effective at deporting these individuals so that they weren't being held in detention for inordinate periods or released inappropriately, she said, "[T]he Congress lays out due process, sir, for every person that is detained ... I cannot deport any individual without an order from the court, either an immigration court or a federal court."

Well, she got it half right: Congress does lay out due process for illegal aliens. But Congress has chosen a number of due process paths that don't require presentation of an alien to the court to obtain removal orders, and it did so in recognition of the need to expeditiously remove certain kinds of aliens. Any immigration officer right out of basic training could tell her that.

  • There is expedited removal of illegal border crossers who are apprehended in immediate proximity to the border — something the administration has been loath to use, despite Saldana's clear understanding that Congress has the right to decide the appropriate avenues of due process accorded to illegal aliens.
  • There is reinstatement of prior final orders against aliens who return after previously being deported — another method of expeditiously removing individuals that the administration has strongly discouraged.
  • There are stipulated orders of removal — the equivalent of "plea agreements" used by prosecutors in criminal cases — which the administration has also discontinued, despite the pertinent fact that such stipulated removals were mostly used for, and extremely effective in, deporting criminal aliens.
  • Finally, and most pertinent of all to the exchange between Saldana and Smith, there is a provision of law that specifically allows for the expedited removal of alien aggravated felons, without having to wait on immigration court proceedings, which are backlogged by months (years in some places). But, once again, the agency, at the behest of its political handlers, has chosen not to exercise its prerogative to deport quickly — notwithstanding that this is the "due process that Congress laid out", as Ms. Saldana was so scrupulous in noting.

Funny how conditional the agency's adherence to congressional due process is, depending on whether that due process meets the political and philosophical litmus tests applied by this White House.

Meantime I have a suggestion to Director Saldana: Pick up a primer on how removal proceedings work under the law — even an abridged version, if you don't think you have the time for the statute itself and your legal advisers can't prep you for a congressional hearing any better than they did. (For shame! Isn't that what the legal term "due diligence" means?)

How about this one published by the Center: "Deportation Basics: How Immigration Enforcement Works (or Doesn't) in Real Life".

After all, ignorance of the law you're supposed to enforce is no excuse.