Heriberto Fuerte-Padilla, an illegal immigrant, was driving drunk in 2020 when he smashed into the car driven by a Texas teenager, killing her. He tried to flee the scene, but police caught up with him.
Initially, Homeland Security said it wanted to pick him up and deport him, once Texas was done with him. But then the department came back and said it changed its mind. Under new rules issued in September by Homeland Security Secretary Alejandro Mayorkas, Fuerte-Padilla doesn’t qualify as a priority anymore.
U.S. Immigration and Customs Enforcement also told Texas it was canceling deportation requests — known as “detainers” — on other illegal immigrants, including some who pleaded guilty to felony charges of evading arrest, had convictions for drunk driving, drug possession or domestic assault injuring a family member.
In each case, ICE told Texas in emails that the detainers were canceled as “priority lifts” — they no longer qualified as important enough targets under Mr. Mayorkas’ new rules.
“Here we have a law enforcement agency handing ICE a criminal alien on a silver platter and ICE saying no thank you, and then the law enforcement agency saying really? And ICE saying no, we really don’t want to take this person,” said Jessica Vaughan, policy studies director at the Center for Immigration Studies.
Cases were revealed in documents filed in federal court in Texas, where Mr. Mayorkas’ rules are being challenged by Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry. The two states said they have plenty more examples of canceled detainers they will introduce as the case goes to trial in late February.
Mr. Mayorkas’ rules are also being challenged in a separate case by Arizona, Montana and Ohio before a federal judge in Ohio. A hearing in that case is scheduled for the middle of February.
Ms. Vaughan said the cases go to the heart of the Biden administration’s claim that it can curtail enforcement, including in cases where the law seems to require it, by citing limited funding.
“What could really sink the administration’s case on this is the fact that they have gone so far in slashing deportations that they’ve crossed whatever gray line there might have been between their need to exercise discretion because of resource limits, and willfully not enforcing the law,” she said.
Mr. Mayorkas developed the rules to force ICE and Customs and Border Protection, the two major immigration enforcement agencies, to hone in on the most serious illegal immigrant targets, cutting those with more minor criminal records a break.
To be arrested or deported, a migrant now must be a national security risk, a recent border jumper or a public safety risk.
It’s that latter category that’s creating the biggest headache. Mr. Mayorkas says agents and officers must evaluate someone’s criminal convictions, then balance those against mitigating factors like how long someone has been in the country, how old their crimes were and how much their families would suffer if they were detained or deported.
Mr. Mayorkas also said being in the country illegally will no longer be enough reason to be deported.
“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” he told agents and officers. “We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”
Detainers used to be routine. ICE would request another law enforcement agency that had custody of an illegal immigrant turn them over when their local prison or jail time was completed.
But over the last decade or so, they became controversial, with many jurisdictions — sometimes prodded by court rulings — adopting sanctuary policies refusing to cooperate with detainers.
ICE, in both the Obama and Trump administrations, had battled those sanctuary jurisdictions, insisting they were releasing dangerous criminals.
Now, with ICE itself canceling detainers, it’s states like Texas who say the feds are the ones forcing release of dangerous criminals.
ICE declined to comment on its decision-making, citing the ongoing legal battle, and it’s not clear why Fuerta-Padilla, the hit-and-run driver, didn’t meet Mr. Mayorkas’ deportation threshold.
Authorities said he was driving drunk at 1:30 on a Sunday afternoon when his Dodge pickup truck smashed into a Mazda driven by 19-year-old Adrienne Sophia Exum. She wasn’t wearing a seatbelt and her door wasn’t shut, and the impact ejected her from her car. She was pronounced dead at the scene.
Ms. Vaughan said even under the Obama administration, Fuerte-Padilla’s case and that of the other four would have been priorities for ICE.
“Anyone reading these rap sheets would say of course these people should be removed, and there shouldn’t be any hair-splitting on whether they are an aggravated felon, how much time they served, whether they’re contributing to the community,” she said.
Texas says the case of Jose Godoy Vasquez is another example of a canceled detainer. According to the state’s law enforcement criminal history database, Vasquez, a Guatemalan, has a string of convictions starting with drunk driving in 2013, then from 2019 to 2021, four new convictions for drug possession and domestic violence.
His sentence runs through 2025. ICE had a detainer request on Vasquez but last month the agency told Texas it was canceling the detainer under the new priorities.
Another case involved a man named Nay Thar. According to state records, Thar, from Thailand, was convicted of drug possession in 2017, drunk driving and fleeing police in 2018, and sneaking contraband into prison in 2020.
State records indicate he was released earlier this month.
The Justice Department had tried to block Texas from introducing the emails from ICE detailing the cancelations.
For one thing, federal lawyers said, Texas submitted the exhibits too late. The lawyers also called the emails “pointless” to the scope of the case, saying ICE has already acknowledged it is cutting some people free based on Mr. Mayorkas’ new rules.
Federal lawyers also tried to block Tom Homan, who served as acting ICE director in the Trump administration, from testifying on behalf of Texas.
The Justice Department says Mr. Homan left the agency years ago, before Mr. Mayorkas’ new deportation limits were in place, so he has no first-hand knowledge to deliver to the court. He is, however, an outspoken opponent of the more relaxed policies the Biden administration has adopted.
“Mr. Homan’s opinions are not the product of reliable principles or methods, but simply the instincts of a man with strongly held views on the proper ‘solution’ to illegal immigration,” the government argued in its brief to Judge Drew B. Tipton.
For good measure, the Justice Department also said Mr. Homan’s views “appear to be based on inadequate facts.”
Ms. Vaughan said it was “almost comical” how vehemently the Biden team was fighting to keep Mr. Homan, a 30-year ICE veteran, away from the courtroom.
“They’re trying to portray him as some ignorant gadfly,” she said. “They probably are very concerned about it. It shows me it’s not enough to rebut his testimony, they have to keep him from testifying. That’s how concerned they are about this.”
Judge Tipton on Tuesday sided with Texas on both issues, agreeing to allow the state’s witness list and evidence — including the emails about canceled detainers.