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.
The Homeland Security Department initially said it wanted authorities to pick him up and deport him once Texas punished him, but then it changed its mind. Under 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 that it was canceling deportation requests — known as “detainers” — on other illegal immigrants, including some who pleaded guilty to felony charges of evading arrest or had convictions for drunken 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 were no longer important targets under Mr. Mayorkas’ 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 Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry are challenging Mr. Mayorkas’ rules. The two states said they have plenty of other examples of canceled detainers they will introduce as the case goes to trial in late February.
Arizona, Montana and Ohio are challenging Mr. Mayorkas’ rules in a separate case before a federal judge in Ohio. A hearing 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 home in on the most serious illegal immigrant targets and give a break to those with more minor criminal records.
To be arrested or deported, a migrant now must be a national security risk, a recent border jumper or a public safety risk.
The latter category is creating the biggest headache. Mr. Mayorkas said agents and officers must evaluate and balance criminal convictions against mitigating factors such as how long the illegal immigrant has been in the country, how old the crimes are and how much their families would suffer if they are detained or deported.
Mr. Mayorkas also said being in the country illegally is not a sufficient 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 ask law enforcement agencies to turn over illegal immigrants once they completed their prison or jail time.
Over the past decade or so, the practice became controversial. Many jurisdictions, sometimes prodded by court rulings, adopted sanctuary policies and refused to cooperate with detainers.
During the Obama and Trump administrations, ICE battled those sanctuary jurisdictions and said they were releasing dangerous criminals.
Now, with ICE canceling detainers, it’s states that say federal authorities are forcing the release of dangerous criminals.
ICE declined to comment on its decision, citing the ongoing legal battle. It’s not clear why Fuerta-Padilla, the hit-and-run driver, didn’t meet Mr. Mayorkas’ deportation threshold.
Authorities said Fuerta-Padilla 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 seat belt 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 those 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 drunken driving in 2013 and then for drug possession and domestic violence from 2019 to 2021.
His sentence runs through 2025. ICE had a detainer request on Vasquez but told Texas last month that 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, drunken driving and fleeing police in 2018, and sneaking contraband into prison in 2020.
State records indicate he was released this month.
The Justice Department tried to block Texas from introducing the emails from ICE detailing the cancellations.
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 because ICE already acknowledged it was cutting some people free based on Mr. Mayorkas’ rules.
Federal attorneys tried to block Tom Homan, who served as acting ICE director in the Trump administration, from testifying on behalf of Texas.
The Justice Department said Mr. Homan left the agency years ago, before Mr. Mayorkas’ deportation limits were in place, so he had no firsthand knowledge to deliver to the court. He is, however, an outspoken opponent of the more relaxed policies that 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. He agreed to allow the state’s witness list and evidence, including the emails about canceled detainers.
• Stephen Dinan can be reached at firstname.lastname@example.org.
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